THE  LAW  AND  THE  PRACTICE 
OF  MUNICIPAL  HOME  RULE  • 


BY 


HOWARD   LEE   McBAIN 
U 

ASSOCIATE    PROFESSOR    OF    MUNICIPAL,    SCIENCE    AND 
ADMINISTRATION    IN    COLUMBIA    UNIVERSITY 


COLUMBIA   UNIVERSITY   PRESS 
1916 

All  rights  reserved 


** 


COPYKIOHT,    1916, 

BY  COLUMBIA  UNIVERSITY  PRESS. 
Set  up  and  electrotyped.     Published  March,  1916. 


Nortoooto  $resss 

J.  8.  Gushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


PREFACE 

/BROADLY  construed  the  term  "  municipal  home  rule "  has  refer- 
ence to  any  power  of  self-government  that  may  be  conferred  upon  a 
city,  whether  the  grant  of  such  power  be  referable  to  statute  or  con- 
stitution. In  American  usage,  however,  the  term  has  become  asso- 
ciated with  those  powers  that  are  vested  in  cities  by  constitutional 
provisions,  and  more  especially  provisions  that  extend  to  cities  the 
authority  to  frame  and  adopt  their  own  charters.;  Powers  thus  con- 
ferred by  the  people  of  a  state  through  the  medium  of  their  funda- 
mental law  create  for  the  city  constitutional  rights  which  may,  like 
the  similar  rights  of  private  persons,  be  defended  in  the  courts 
against  invasion  by  the  legislative  arm  of  the  government.  Such 
rights  it  would  seem  are  appropriately  designated  rights  of  home 
rule.  This  is  certainly  the  sense  in  which  the  term  "  home  rule  "  is 
descriptively  employed  by  our  courts  in  an  ever  increasing  number 
of  cases,  although  in  point  of  fact  the  term  has  never  been  given 
legal  definition  and  can  scarcely  be  regarded  as  a  term  of  our  law  at 
all.  It  is  in  this  restricted  sense,  therefore,  which  is  likewise  in  fair 
harmony  with  the  popular  conception  of  what  it  imports,  that  the 
term  "  home  rule "  has  been  used  to  describe  the  general  subject- 
matter  of  this  volume. 

There  are  now  twelve  states  in  which  certain  or  all  cities  enjoy 
the  power  to  frame  and  adopt  their  own  charters.  Wherever  in  any 
state  this  right  has  been  enjoyed  and  exercised  for  a  considerable 
length  of  time  it  has  given  rise  to  numerous  difficult  questions. 
These  have  of  necessity  been  presented  to  the  courts  for  solution. 
The  cases  upon  this  subject  already  constitute  a  distinct  and  impor- 
tant branch  of  our  state  constitutional  law.  It  seems  obvious  that 
the  time  has  arrived  when  this  branch  of  law  should  as  a  whole  be 


336082 


Vi  PREFACE 

subjected  to  review  and  critical  analysis.  This  is  one  of  the  objects 
of  this  work.  It  is  submitted  with  the  hope  that,  having  accom- 
plished this  object  with  moderate  success,  it  may  be  of  referential 
service  alike  to  the  courts  and  to  the  legal  profession,  especially  in 
the  states  which  have  conferred  upon  cities  the  charter-making  power. 
This  is  not,  however,  the  primary  object  of  this  study.  The  law 
of  municipal  home  rule  —  if  such  it  may  be  called  —  is  preeminently 
public  law.  It  is,  or  should  be,  of  less  importance  to  the  practitioner 
than  to  the  student  of  politics,  to  the  maker  of  constitutions  and  of 
laws,  to  the  active  but  serious-minded  reformer,  and  to  that  vast 
host  of  laymen  who,  with  or  without  participation,  are  deeply  inter- 
ested in  the  betterment  of  municipal  government  in  the  United 
States.  There  is  perhaps  no  subject  that  lends  itself  more  readily 
to  fluent  discourse  than  this  subject  of  home  rule  for  cities.  Argu- 
ments without  number  may  be  readily  adduced  in  its  favor  —  argu- 
ments that  are  none  the  less  of  compelling  force  because  of  their 
splendid  generality.  The  fact  is,  however,  that  home  rule  in  prac- 
tice is  a  matter  of  harassing  details,  of  knotty  problems  of  law,  and 
of  concrete  questions  that  require  yes-or-no  answers.  It  is  in  the 
face  of  these  that  generalities  fail  to  suffice.  In  this  work  the  smooth 
^/path  of  general  argument  has  been  wholly  eschewed.  It  has  been 
/  assumed  that  home  rule  as  a  general,  political,  and  more  or  less  ab- 
stract concept  is  desirable ;  and  it  is  recognized  that  whether  desir- 
able or  not  it  is  a  legal  actuality  in  one-quarter  of  the  states  of  the 
Union  and  an  imminent  probability  in  others.  Without  sentiment, 
therefore,  and  without  appeal  to  all  that  is  picturesquely  indefinite 
in  the  notion  of  self-government,  this  study  [strikes  into  the  rough 
and  only  partly  broken  field  of  the  applied  problems  of  home  rule. 
The  effort  has  been  made  to  study  the  cases  not  only  for  the  legal 
principles  declared  but  also  in  the  light  of  the  practices  both  of  cities 
in  the  making  of  charters  and  of  legislatures  in  the  enactment  of 
laws.  In  other  words,  in  so  far  as  is  possible,  the  attempt  has  been 
made  to  set  forth  the  net  governmental  results  of  home  rule  in  the 
states  in  which  it  has  been  put  into  operation.  This,  then,  is  the 
primary  object  of  this  work  —  to  wit,  that  the  specific  questions 
that  have  arisen  may  be  marshaled  into  review  ;  that  the  difficulties, 
real  and  otherwise,  which  the  courts  have  encountered  in  construing 


PREFACE  vii 

home  rule  provisions  of  constitutions  may  be  understood  and  appre- 
ciated ;  and  that  the  actual  relation  in  law  between  the  city  as  an 
autonomous  unit  and  the  state  government  as  its  restricted  superior 
may  be  comprehended  to  the  extent  at  least  to  which  it  has  been 
settled  by  judicial  decree  and  by  charter  and  statutory  practices. 

It  seems  probable  that  few  if  any  of  the  more  recent  constitu- 
tional provisions  granting  home  rule  powers  have  been  framed  with 
an  accurate  and  detailed  knowledge  of  the  legal  problems  to  which 
similar  provisions  have  elsewhere  given  rise.  If  they  have  been 
drafted  with  such  knowledge  at  hand,  the  least  that  can  be  said  is 
that  the  authors  of  these  provisions  have  been  inexcusably  short- 
sighted. They  have  certainly  imposed  an  unnecessary  onus  upon 
the  courts — already  much  abused  for  their  failure  to  respond  to  our 
individual  views  respecting  the  policies  which  we  in  large  measure 
compel  them  to  determine  by  the  use  of  vague  and  undefined  phrases 
in  our  constitutions.  It  may  be  that  it  is  impossible  to  confer  broad 
powers  of  home  rule  in  terms  of  such  definiteness  and  precision  that 
the  courts  will  find  no  difficulty  in  the  matter  of  construction  and 
application.  But  it  seems  patent  that  the  makers  of  constitutions 
should  wrestle  earnestly  with  the  task  of  avoiding  the  various  pit- 
falls of  uncertainty  which  the  courts  have  discovered  in  most  of  the 
constitutional  provisions  upon  this  subject,  and  that  they  should 
endeavor  to  give  unmistakable  answer  at  least  to  those  concrete 
questions  which  have  been  recurrently  presented  elsewhere.  It  is 
idle  to  seek  the  solution  of  a  problem  without  an  understanding  of 
its  practical  difficulties.  Many,  though  by  no  means  all,  of  the  diffi- 
culties of  the  home  rule  problem  have  found  exposition  and  a  meas- 
ure of  wise  or  unwise  solution  in  the  books.  No  constitutional 
provision  granting  home  rule  powers  should  be  drafted  without  an 
accurate  and  detailed  knowledge  of  the  origin  and  nature  of  these 
difficulties.  It  is  unjust  that  the  courts  should  be  compelled  to  give 
precise  definition  to  terms  which  have  no  precision  of  meaning  and 
be  forced  to  determine  complicated  questions  of  public  policy  which 
the  framers  of  constitutions  have  either  lightly  ignored  or  deliber- 
ately dodged.  This  book  has  been  written  with  the  end  in  view 
that  those  who  may  be  interested  in  or  responsible  for  the  writing 
of  constitutional  provisions  conferring  home  rule  powers  may  have 


.  viii  PREFACE 

before  them  in  convenient  form  a  fairly  comprehensive  review  of  the 
actual  experience  of  the  states  in  which  cities  have  enjoyed  the  right 
to  frame  and  adopt  their  own  charters.  Its  purpose  will  have  been 
accomplished  if,  without  dampening  the  ardor  of  the  advocates  of 
home  rule,  it  nevertheless  serves  to  bring  the  discussion  of  this  all- 
important  subject  a  little  closer  to  earth  and  to  point  the  way  for- 
ward, even  to  a  limited  extent,  by  blazing  the  entire  field  of  the  law 
as  it  has  been  evolved  and  the  practice  as  it  has  been  affected  by 
the  law. 

Owing  to  important  differences  from  state  to  state  not  only  in  the 
phraseology  of  home  rule  provisions  but  also  in  the  history  of  these 
provisions  before  the  courts,  it  has  seemed  advisable  to  treat  the 
subject-matter  of  the  text  by  states  rather  than  by  topics.  What- 
ever disadvantages  inhere  in  this  method  of  approach  have  been 
sought  to  be  overcome  by  frequent  cross-references  in  the  text  and 
cross-citations  in  the  notes. 

I  have  inflicted  neither  colleagues,  students,  nor  other  friends  with 
the  burden  of  assisting  me  in  the  preparation  of  this  work.  I  am 
free  from  obligations,  therefore,  only  at  the  loss  of  valuable  criti- 
cisms which  I  might  have  had.  Such  debt  as  I  owe  is  to  an  institu- 
tion which  to  the  utmost  of  its  means  cherishes  and  fosters  the  spirit 
of  research  and  which  to  that  end  has  enabled  me  to  find  time  from 
the  exactions  of  routine  to  contribute  this  small  offering  to  the 
advancement  of  legal  learning  and  the  progress  of  political  reforms. 

HOWARD  LEE  McBAIN 
NEW  YORK  CITY, 
October,  1915. 


CONTENTS 
PART  I 

THE  ORIGIN  AND  DEVELOPMENT  OF  THE 
HOME  RULE  PROBLEM 

CHAPTER  PAGE 

I.   THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     ...  3 

Legislative  "  interference "  with  cities     .         .         .        .  5 

The  doctrine  of  an  inherent  right  of  local  self-government    .  12 

The  doctrine  of  complete  legislative  supremacy  over  cities     .  15 
The    degree   of   protection    which    cities   enjoy   under   the 
clauses  of  the  federal  constitution  guaranteeing  rights 
and  immunities  to  persons         .        .         .         .                 .17 

II.  CONSTITUTIONAL  LIMITATIONS  DIRECTED  AT  SPECIFIC  LEGIS- 
LATIVE ABUSES 29 

Clauses  guaranteeing  the  right  of  local  selection  of  city 

officers 29 

Clauses  prohibiting  the  appointment  of  special  commissions 

in  control  of  municipal  affairs  ......  45 

Clauses  relating  to  the  financial  powers  of  cities     ...      48 

Clauses  prohibiting  cities  from  aiding  public  improvement 

corporations  .  .  .  . 55 

Clauses  prohibiting  legislative  interference  with  streets  and 

street  franchises 59 

III.   CONSTITUTIONAL  PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION 

FOR  CITIES 64 

Prohibitions  on  special  legislation  for  private  corporations    .       66 
Prohibition  against  special  legislation  for  cities  in  the  Ohio 

constitution  of  1851 68 

Prohibition  against  special  legislation  for  cities  in  the  Indi- 
ana constitution  of  1851    .  74 


:  CONTENTS 

HAPTEB  PAGE 

Prohibition  against  special  legislation  for  cities  in  the  Iowa 

constitution  of  1857 81 

Prohibition  against  special  legislation  in  the  Kansas  consti- 
tution of  1859 85 

Provisions  of  Nevada  (1864),  Nebraska  (1867),  Arkansas 
(1868),  Tennessee  (1870),  and  Virginia  (1870)  consti- 
tutions ..........  87 

Prohibition  against  special  legislation  in  the  Illinois  con- 
stitution of  1870 92 

Further  development  of  prohibitions  against  special  legis- 
lation for  cities  ........  94 

The  nature  of  the  "  protection  "  afforded  to  cities  by  pro- 
hibitions against  special  legislation  ....  96 

Special  legislation  under  the  New  York  constitution  of  1894     101 

PART   II 

HOME   EULE   IN   THE   STATES 

WHICH   HAVE    GRANTED   CHARTER-MAKING 

POWERS   TO   CITIES 

IV.   THE   FEDERAL  IDEA   AS  APPLIED   TO   RELATIONS   BETWEEN 

THE    ClTY   AND    THE    STATE    ...'..       109 

Table  of  home  rule  provisions  as  determined  by  constitu- 
tions and  supplementary  statutes 114 

V.   HOME  RULE  IN  MISSOURI  —  CONFLICT  BETWEEN  STATE  LAWS 

AND  CHARTER  PROVISIONS 118 

Does  a  state  law  supersede  a  charter  provision  regulating 

matters  pertaining  to  taxes  and  licenses  ?  127 

Does  a  state  law  supersede  a  charter  provision  in  matters 

pertaining  to  the  police  ? 133 

Does  a  state  law  supersede  a  municipal  ordinance  enacted 

in  the  exercise  of  the  police  power  ?  ....  138 
Does  a  state  law  supersede  a  charter  provision  governing 

matters  pertaining  to  elections?  .....  141 
Does  a  state  law  supersede  a  charter  provision  regulating 

the  annexation  of  territory? 146 


CONTENTS  xi 


Does  a  state  law  take  precedence  over  a  charter  .provision 
relating  to;  the  control  of  privately  owned  municipal 
utilities? ,  .  .  149 

Does  a  state  law  supersede  a  charter  provision  governing 

the  making  of  street  improvements?  ....  153 

Does  a  state  law  supersede  a  charter  provision  relating  to 

such  matters  as  parks,  boulevards,  and  bridges?  .  .  156 

Does  a  state  law  supersede  a  charter  provision  governing 

the  removal  of  municipal  officers?  .  .  .  .  163 

Does  a  state  law  supersede  a  charter  provision  regulating 
the  filing  and  the  prosecution  of  damage,  tax,  and  con- 
tract claims  against  the  city  itself  ?  .  .  .  .165 

VI.   HOME    RULE    IN    MISSOURI  —  THE    SCOPE    OF    THE    CITY'S 

POWERS  IN  FRAMING  A  CHARTER       .        .        .        .     172 

May  the   city  exercise  the   taxing  and   eminent  domain 

powers? .  173 

Has  the  city  the  power  to  enact  police  ordinances?      .         .  176 
Has  the  city  power  to  regulate  municipal  elections  ?    .         .  182 
Has  the  city  power  to  regulate  matters  pertaining  to  pri- 
vately owned  public  utilities?         .....  186 
To  what  extent  may  the  city  exercise  control  over  its  own 

streets? .190 

Has  the  city  the  power  to  confer  jurisdiction  upon  a  court 

forming  a  part  of  the  state  judicial  organization?         .  193 

Has  the  city  the  power  to  create  police  courts?    ..    •,     ,         .  195 

Is  the  power  to  frame  a  charter  a  continuing  right  ?    .         .  197 

VII.   HOME   RULE  IN   CALIFORNIA  —  THE   LEGAL   NATURE   OF   A 

FREEHOLDERS'  CHARTER       .        .        .        .        .        .    200 

The  form  of  legislative  ratification  of  charters  and  amend- 
ments .  .  . >  .  205 

Is  a  home  rule  charter  a  law  ?......     206 

Actual  results  of  the  requirement  of  legislative  ratification 

of  charters  and  amendments  .         .         .         •         »         •     218 
Judicial  control  over  home  rule  procedure    .         .         .         .     220 

Constitutional  amendments  of  1887,  1892,  1902,  1906,  1911, 

and  1914  in  respect  to  home  rule  procedure  ,         .         .     223 


xii  CONTENTS 

CHAPTER  PA<J« 

VIII.  HOME  RULE  IN  CALIFORNIA  —  CONFLICT  BETWEEN  STATE 

LAWS  AND  CHARTER  PROVISIONS  BEFORE  1896  .  229 

The  contradictions  of  section  six 231 

The  doctrine  that  "  general  laws "  dealing  with  specific 
charter  subjects  control  charter  provisions  without  local 
acceptance,  regardless  of  whether  such  laws  relate  to 
state  or  municipal  affairs 232 

The  doctrine  as  to  the  control  of  "general  laws  "  over  char- 
ter provisions  considered  in  its  relation  to  the  subject 
of  police  courts 241 

The  doctrine  as  to  the  control  of  "  general  laws  "  applied 

specifically  to  the  case  of  freeholders'  charters  .  .  245 

IX.   HOME   RULE   IN   CALIFORNIA  —  CONFLICT   BETWEEN   STATE 

LAWS  AND  CHARTER  PROVISIONS  AFTER  1896   .        .    252 

Cities  under  special  legislative  charters  exempted  from  the 

control  of  general  laws  relating  to  "  municipal  affairs  "  254 

Is  the  control  of  the  police  a  municipal  affair  ?     .        .        .     255 

Is  the  exercise  of  the  police  power  a  municipal  affair  ?        .     256 

Is  the  regulation  of  matters  pertaining  to  prosecutions  for 
the  violation  of  municipal  charters  and  ordinances  a 
municipal  affair? 257 

Are  matters  pertaining  to  the  election  of  city  officers  a 

municipal  affair?  ........  259 

Is  the  annexation  of  territory  a  municipal  affair?        .        .     269 

Is  the  regulation  of  matters  pertaining  to  street  improve- 
ments a  municipal  affair?  .  .  .  .  .  .  271 

Is  the  control  over  the  sources  of  municipal  revenue  a 

municipal  affair  ? 277 

Is  the  regulation  of  matters  pertaining  to  bond  issues  a 

municipal  affair  ? 282 

Is  the  control  of  matters  relating  to  the  public  health  a 

municipal  affair?  ........  286 

Is  the  control  of  public  education  a  municipal  affair  ?          .     295 

Is  the  control  of  privately  owned  public  utilities  a  munici- 
pal affair?  308 

Is  the  regulation  of  matters  pertaining  to  the  removal  of 

city  officers  a  municipal  affair  ? 313 


CONTENTS  xiii 


Is  the  manner  in  which  the  "legislative  power"  of  a  city 

shall  be  exercised  a  municipal  affair?  ....  318 
The  "  municipal  affairs  "  amendment  as  reamended  in  1914  319 

X.   HOME  RULE  IN  CALIFORNIA  —  THE  POWERS  OF  THE  CITY  .     322 

Is  the  exercise  of  the  police  power  included  in  the  grant 

of  power  to  frame  a  charter  ?  .....  322 
Has  a  city  the  power  to  provide  for  the  separation  or 

annexation  of  territory  ?         ......     333 

Has  a  city  the  power  to  acquire  property  for  and  to  operate 

a  waterworks  outside  the  city  ?  .....  335 
Has  the  city  the  power  to  exercise  complete  control  over 

street  improvements  and  other  public  works?  .  .  337 
Is  the  power  to  levy  taxes  included  in  the  power  to  frame 

a  charter?        .........     340 

Has  the  city  the  power  to  regulate  the  filing  and  prosecu- 

tion of  tax  or  damage  claims  against  the  city  itself?  .  340 
Has  the  city  the  power  to  regulate  matters  pertaining  to 

public  health?          ........     343 

Has  the  city  the  power  to  regulate  matters  pertaining  to 

public  education  to  the  extent  that  such  matters  are 

not  controlled  by  state  law  ?  ......    344 

Has  the  city  the  power  to  control  privately  owned  public 

utilities?          .        .        .        .        .....    345 

Has  the  city  the  power  to  own  and  operate  public  utilities  ?  355 
Has  a  city  the  power  to  impose  qualifications  for  munici- 

pal office  and  to  regulate  the  removal  of  municipal 

officers?   ..........     364 

Has  the  city  power  to  incorporate  in  its  charter  a  provision 

for  direct  legislation  ?     .......     367 

The  effect  of  the  amendment  of  1914  upon  the  powers  of 

cities        ..........     368 

XI.  HOME  RULE  IN  CALIFORNIA  —  CERTAIN  SPECIFIC  RIGHTS 
CONFERRED  IN  ADDITION  TO  THE  GENERAL  GRANT 
OF  POWER  TO  FRAME  A  CHARTER  .  .  .  370 

Were  the  provisions  of  section  8£  retrospective  ?  .  .  .  372 
What  powers  might  the  city  exercise  over  the  jurisdiction 

of  police  courts  ?     .,        .......     373 


xiv  CONTENTS 

rlH  AFTER  PAOB 

To  what  extent  could  the  charter  of -a  consolidated  city 
and  county  regulate  matters  pertaining  to  "county" 
officers  ?  .  .  ....  .  .  .  .  .  386 

Section  8£  as  amended  in  1911  and  1914       .        .        .        .     391 

XII.   HOME  RULE  IN  WASHINGTON    ...        .        .        .        .     396 

Has  a  city  the  power  to  create  a  police  court?      .        .         .     400 
What  is  the  extent  of  the  city's  police  powers  ?    .         .         .     403 
What  powers  may  a  city  exercise  in  respect  to  the  annexa- 
tion of  territory  ? .         .     407 

To  what  extent  may  the  city  regulate  matters  pertaining  to 

the  procedure  for  making  charter  amendments?  .         .     411 
To  what  extent  may  the  city  control  matters  pertaining  to 

elections? .         .         .        .     425 

May  a  city  provide  for  recall  elections?  ....  428 
What  is  the  scope  of  the  city's  financial  powers  ?  .  .  429 
What  is  the  city's  power  to  regulate  matters  pertaining  to 

public  utilities?       .         . 436 

To  what  extent  can  the  city  regulate  the  rights  of  private 

persons  having  claims  against  the  city  ?  445 

To  what  extent  could  the  legislature,  irrespective  of  the 
powers  to  be  exercised,  impose  upon  the  city  require- 
ments in  respect  to  the  form  of  its  government  and  the 
medium  through  which  its  powers  might  be  exercised  ?  448 

XIII.   HOME  RULE  IN  MINNESOTA       .        .        .        .        .        .        .    457 

The  procedure  for  drafting  and  adopting  a  home  rule  char- 
ter   460 

What  powers  may  the  home  rule  city  exercise  in  the  ab- 
sence of  any  conflict  with  state  law  ?  465 

1.  Police  departments 467 

2.  Police  powers ,        .    467 

3.  Financial  powers 471 

4.  Power   to   confer  jurisdiction   upon   regular   state 

courts 473 

5.  Exterritorial  powers  ....        .         .        .    474 

6.  Power  to  establish  the  commission  form  of  govern- 

ment   .  ,     476 


CONTENTS  XV 


Conflicts  between  charter  provisions  and  previously  enacted 

state  laws         .........  480 

1.  Contracts  for  public  improvements  .         .         .        .  480 

2.  Special  assessments    .......  485 

3.  Debt  limits .         .  486 

4.  Claims 487 

5.  Police  courts 490 

The  supremacy  over  charter  provisions  of  laws  applicable 

to  classes  of  cities    . 493 

XIV.   HOME  RULE  IN  COLORADO 498 

The  "  constitutionality  "  of  the  home  rule  amendment         .     506 

Further  complications  arising  out  of  the  consolidation  of 

the  city  and  county  governments  in  Denver  .         .         .     526 

Has  the  home  rule  city  the  power  to  erect  and  maintain  an 

auditorium? 531 

What  are  the  city's  financial  powers  and  to  what  extent  are 

they  subject  to  the  control  of  state  laws?       .         .         .     535 

Does  a  state  law  supersede  a  charter  provision  regulating 
the  manner  in  which  a  home  rule  city  shall  enter  into 
contracts? 538 

Has  the  city  the  power  to  regulate  matters  pertaining  to 
elections  and  to  what  extent  is  it  subject  to  the  control 
of  state  laws  pertaining  to  such  matters  ?  541 

Has  the  city  the  power  to  supplement  the  procedure  laid 

down  for  the  amendment  of  home  rule  charters?  .         .     547 

Does  a  state  law  supersede  a  charter  provision  in  respect  to 

the  police  power  ?........     549 

The  home  rule  amendment  of  1912       .....     552 
XV.   HOME  RULE  IN  OKLAHOMA  AND  ARIZONA       ....    558 

The  power  of  the  city  to  control  matters  pertaining  to  the 

procedure  of  adopting  charters  and  amendments  .         .     562 

Has  the  city  the  power  to  provide  for  the  sale  of  public 

property? 566 

Has  the  city  the  power  to  acquire   or  regulate  a  public 

utility?    .         . 567 

Does  a  state  law  control  a  charter  provision  in  a  matter 
pertaining  to  the  organic  form  of  the  municipal  gov- 
ernment ?  ,  574 


xvi  CONTENTS 

CHAPTER  PAOB 

Does  a  state  law  control  a  charter  provision  in  respect  to 

the  issuance  of  municipal  bonds  ?  580 

Has  the  city  the  power  to  impose  qualifications  f or  mu- 
nicipal suffrage? 581 

Does  a  state  law  control  a  charter  provision  regulating 

elections? .583 

Does  a  state  law  control  a  charter  provision  on  the  sub- 
ject of  education  ? 585 

Home  rule  in.  Arizona 589 

XVI.   HOME  RULE  IN  OREGON  AND  MICHIGAN       .                 .        .  591 

Home  rule  in  Oregon          .         .        .         .        .        .        .591 

1.  Procedure        ........  594 

2.  The  scope  of  home  rule  powers      ....  600 
Home  rule  in  Michigan 604 

1.  The  power  of  the  legislature  to  enact  special  laws  604 

2.  The  power  of  the  legislature  to  restrict  the  powers 

of  home  rule  cities  by  general  laws         .        .  607 

3.  The  home  rule  act  of  1909     .        .        .        ,°      .  609 

4.  The  extent  of  the  exercise  of  home  rule  powers 

in  Michigan 612 

5.  The  meaning  of  the  grant  of  home  rule  powers 

to  the  electors  .         .        .        .        .         .613 

6.  The  power  of  the  city  to  amend  an  existing  legis- 

lative charter 614 

7.  Judicial  construction    of    certain   points  in   the 

home  rule  act 618 

XVII.   HOME  RULE  IN  OHIO,  NEBRASKA,  AND  TEXAS    .        .        .  621 

Home  rule  in  Ohio 621 

1.  The  scope  of  the  city's  powers  apart  from  any 

question  of  conflict  with  state  laws         .        .  625 

2.  The  relation  between  conflicting  "  general  laws  " 

and  charter  provisions 630 

(1)  Elections 635 

(2)  Civil  service      ...        .        .        .        .  642 

(3)  Streets  and  public  utilities       .         .        .  644 


CONTENTS  xvii 


PAGE 

Home  rule  in  Nebraska 645 

Home  rule  in  Texas   ....  649 


XVIII.   SOME  GENERAL  CONCLUSIONS         .        .        .        .        .        .656 

The  machinery  of  home  rule 656 

1.  Shall  the  machinery  for  the  initial  exercise  of 

home  rule  powers  be  prescribed  by  the  con- 
stitution or  by  statute  ? 658 

2.  Shall  the  power  to  regulate  the  machinery  for  the 

initial  exercise  of  home  rule  powers  be  vested 

in  some  corporate  authority  of  the  city?         .     661 

3.  Shall  the  home  rule  machinery  prescribed  by  the 

constitution  or  statute  be  binding  upon  the 
city  which  has  once  exercised  home  rule 
powers? 663 

4.  Shall  the  exercise  of  home  rule  powers  be  made 

optional  or  in  effect  compulsory  ?    .         .         .     664 

5.  Shall  the  city  be  required  to  frame  and  adopt  an 

entirely  new  charter  or  shall  it  be  permitted 

to  amend  its  existing  legislative  charter  ?       .     667 

6.  Shall  either  the  legislature  or  the  governor  be 

given  a  veto  power  over  charters  and  charter 
amendments?  ......     667 

The  grant  of  home  rule  powers 668 

1.  Shall  the  substantive  powers  of  home  rule  be 

simply  included  by  implication  in  the  appar- 
ently adjective  power  to  frame  a  charter?  .  668 

2.  Shall  the  grant  of  home  rule  powers  be  made  in 

general  terms  or  shall  there  be  a  descriptive 
enumeration  in  addition  to  such  general 

grant? 669 

Relation  between  the  powers  of  cities  and  the  powers  of 

state  legislatures 673 

1.  Shall  home  rule  powers  be  made  expressly  "  sub- 

ject to"  the  other  provisions  of  the  consti- 
tution?   674 

2.  Shall  the  provisions  of  home  rule  charters  be 

made  subject  to  "  general  laws  "  ?  .        .        .     676 


xviii  CONTENTS 

PAGE 

3.  Shall  home  rule  charters  be  made  subject  to  laws 

of  general  application  to  cities  ?  677 

4.  Shall  home  rule  charters  be  made  subject  to  laws 

of  general  concern  ? 682 

TABLE  OF  CASES 685 

INDEX   ,  ...     697 


PAET  I 

THE  ORIGIN  AND  DEVELOPMENT  OF  THE 
HOME  RULE  PROBLEM 


CHAPTER  I 
THE  SCOPE   OF  LEGISLATIVE  POWER   OVER   CITIES 

AT  the  close  of  the  colonial  period  of  American  history  there  ex- 
isted in  the  several  states  of  the  newly  welded  Union  sixteen  cor- 
porate entities  known  as  cities  or  boroughs.  In  New  England 
where  the  township  furnished  a  type  of  government  suitable  alike 
for  rural  and  simple  urban  conditions  no  municipal  corporation 
proper  had  been  established.  But  in  New  York  there  were  three 
such  corporations,  in  New  Jersey  four,  in  Pennsylvania  four,  in 
Maryland  one,  in  Virginia  three,  and  in  North  Carolina  one.1 

In  the  transition  from  colony  to  commonwealth  these  corpora- 
tions remained  unaffected;  but  a  highly  significant  change  was 
made  in  the  source  of  their  authorities.  Each  of  the  municipal 
corporations  established  in  the  colonies  owed  its  origin  to  a  charter 
issued  by  the  governor  acting  under  grant  of  authority  from  the 
crown  or  proprietor.  After  the  Revolution  the  power  to  issue  cor- 
porate  charters  became  vested  in  the  legislatures  of  jhe  several 
^slalesT^nd  it  was  the  legislatures  that  succeeded  to  whatever 
authority  the  governor  as  agent  of  the  crown  or  proprietor  enjoyed 
with  respect  to  existing  municipal  charters.  The  first  constitu- 
tions of  New  York,  Pennsylvania,  and  Maryland  expressly  recog- 
nized the  transference  of  this  competence  to  the  legislature.2  Else- 

1  Fairlie,  Essays  in  Municipal  Administration,  pp.  50-60.     There  had  been  two 
"paper"  incorporations  in  Maine  prior  to  its  absorption  by  Massachusetts;    and 
the  corporation  of  Germantown,  Pennsylvania,  had  existed  for  a  few  years. 

2  The  constitution  of  New  York  (1777),  art.  xxxvi,   expressly  validated  and 
continued  the  charters  of  bodies  politic  granted  by  the  king  of  Great  Britain  or 
his  predecessors  and  provided  specifically  for  the  manner  in  which  the  officers  of 
corporations  established  under  such  charters  should  be  appointed  "until  otherwise 
directed  by  the  legislature." 

3 


DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

where  the  legislature  succeeded  to  this  power  by  tacit  implication ; 
for  it  was  early  settled  in  practice  and  later  in  law  that  the  governor 
enjoyed  on^such_Bow^ra_as  were  expressly  conferred  upon  him  by 
tEe  constitution  or  by  statute,1  while  the  legislature  acted  under  a 
/  general  and  unenumerated  grant  of  legislative  oFpolicy-determin- 
^'  ing  power.  Under  this  view  it  could  not  have  been  asserted  that 
the  governor  succeeded  by  implication  or  otherwise  to  any  power 
of  his  colonial  predecessor  unless  such  power  was  specifically  con- 
ferred upon  him  by  the  constitution  or  a  valid  act  of  legislation. 
In  no  state  did  the  constitution  vest  the  governor  with  the  power 
to  grant  or  alter  charters  of  municipal  corporations ;  and  the  ques- 
tion has  never  arisen  whether  a  statutory  grant  of  such  power  to 
the  executive  would  or  would  not  be  an  unconstitutional  delega- 
tion of  legislative  power  —  a  question  which  would  certainly  be 
resolved  against  the  validity  of  such  a  grant  —  for  the  very  ob- 
vious reason  that  no  legislature  has  ever  contemplated  the  abdica- 
tion of  so  important  a  power. 

\  It  was  thus  that  the  legislatures  of'the  several  states  came  into 
possession  of  a  power,  the  exercise  of  which  presented  at  a  later 
period  of  our  history  the  most  serious  problem  that  the  American 
city  has  encountered  in  the  working  out  of  its  salvation. 

It  is  not  surprising  that  the  difficulties  arising  out  of  the  power 
which  the  legislature  enjoyed  to  grant  and  alter  charters  of  munici- 
pal corporations  did  not  become  serious  until  many  years  after  the 
beginning  of  our  history  as  a  nation.  At  the  present  time  we  count 
a  city  of  twenty  thousand  among  the  very  minor  municipalities 
of  the  country ;  but  in JL 820  there  were  only  six  cities  in  the  entire 
country  with  a  populatjojTtFat  exceeded  that  number  By  the 
middle  of  the  nineteenth  century  the  number  of  such  cities  was  only 

The  constitution  of  Pennsylvania  (1776),  sec.  9,  vested  the  general  assembly 
with  power  to  "grant  charters  of  incorporation"  and  to  "constitute  towns,  bor- 
oughs, cities,  and  counties." 

The  constitution  of  Maryland  (1776),  art.  xxxvii  of  the  Declaration  of  Rights, 
declared  that  the  "city  of  Annapolis  ought  to  have  all  its  rights,  privileges  and 
benefits,  agreeable  to  its  charter,  and  the  acts  of  assembly  confirming  and  regulating 
the  same,  subject  nevertheless  to  such  alteration  as  may  be  made  by  this  convention,  or 
any  future  legislature." 

1  Goodnow,  Principles  of  the  Administrative  Law  of  the  United  States,  p.  95. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     5 

twenty-nine.  New  York  had  more  than  half  a  million  inhabitants, 
but  only  five  other  cities  —  Boston,  Philadelphia,  Cincinnati, 
Baltimore,  and  New  Orleans  —  had  crossed  the  one  hundred  thou- 
sand mark.  Brooklyn  with  a  population  of  ninety-six  thousand 
and  St.  Louis  with  seventy-seven  thousand  were  the  seventh  and 
eighth  cities  of  the  country.  It  is  true  that  many  nascent  commu- 
nities received  charters  of  incorporation  during  the  years  that  fell 
between  1780  and  1850,  while  existing  charters  were  during  this 
period  amended  from  time  to  time  and  occasionally  completely 
revised.  But  generally  speaking  the  era  of  legislaih^-aetwdty  \, 
jvith  the  affairs  of  cities  had  not  arrived,  even  though  here  and/) 
jjaere  perhaps_an^ominous  finger  ot  warmng^might  have  begjo- 
Directed  to  thgjmnd writing  nn  the 


Legislative  "Interference"  with  Cities 

Delivering  an  opinion  in  the  year  1815,  in  which  he  referred  to  a 
statute  that  had  been  passed  amending  the  charter  of  New  York 
City,  Judge  Ambrose  Spencer  declared  that,  although  the  act 
contained  "no  recitals,  stating  that  it  was  passed  on  the  applica- 
tion of  the  corporation  of  New  York,  yet  we  must  presume  that  it 
was  so  passed,  it  being  almost  the  invariable  course  of  proceedings, 
for  the  legislature  not  to  interfere  with  the  internal  concerns  of  a 
corporation,  without  its  consent  signified  under  its  common  seal."  * 
If  this  may  be  taken  as  a  true  statement  of  the  early  practice  of  the 
New  York  legislature  toward  the  municipal  corporations  of  that 
state,  such  practice  certainly  stands  in  striking  contrast  with  that 
which  prevailed  in  Albany,  as  well  as  in  most  other  state  capitals, 
at  a  later  period  in  the  history  of  the  country. 

It  is  unnecessary  here  to  attempt  to  trace  the  changes  in  mu- 
nicipal conditions  which  brought  abou^an  abandonment  of  this 
early  attitude  of  legislative  deference  toward  the— mllr- anti  the  y 
pleasure  of  municipal  corporations.     It  is  sufficient  to  say  that  it,. 
Ka^-^QQLLuntiLcities  deveToped"ih  number  and  in  population,  not    ( 
JmjJLthey began  to  expand  their  activities  in  the  direction  of  im-     * 

1  Mayor,  etc.,  of  New  York  v.  Ordrenan,  12  John.  (N.Y.)  122.     1816. 


6         DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 


<?  ,  proving  the  conditions  of  mi  i  n  i  cipaLlifa  in.  many  respectsy 

*-4  WtiLS5.e-deBa^^afosa|or  the  supply  of  such  great  public  services 

.:&&_  water,  gas,  and  transportation,  that  the  large  rewards  which 

lay  in  their  offices,  their  contracts,  and  the  franchises  in  their  streets 

became  the  mark  of  the  political  spoilsman  in  the  state  legislature. 

It  was  at  this  time  that  legislators,  discarding  their  considerate 

practice  of  earlier  years,  became  zealously  active  in  the  enactment 

of  laws  regulating  the  affairs  of  cities. 

Nor  is  it  either  important  or  possible  to  name  the  exact  date  at 
which  this  period  of  legislative  zeal  as  to  the  affairs  of  cities  arrived. 
It  is  sufficient  to  remark  that  in  fewjjuany^gtates  dioLthe^  practice 
.ofjegislative  "  interference  "  with  cities  develo 
tremis^^fui^the-middlo  oentiH^rmarkliad  beenpassed,  and  that 
the  most  onerous  burdens  of  legislative  dominatioja^wexe-^iereafter 
felt  by  cities  in  diffefenT  states~aT  different  times. 

The  practice  of  enacting  innumerable  laws  relating  to  cities  had 
not  been  under  way  for  many  years  before  vigorous_prQtests  were 
raised.  Thus  it  was  as  far  back  as  the  first  Decade  of  the  second 
half  of  the  century  that  the  mayors  of  the  city  of  New  York  began 
to  voice  their  disapproval  of  the  frequency  with  which  the  charter 
of  that  city  was  subjected  to  alteration  by  the  legislature.  Said 
Jacob  A.  Westervelt  in  his  annual  message  of  1854  : 

I  cannot  but  deprecate  the  practice  which  has  grown  into  use  of  late 
years,  of  applying,  almost  annually,  to  the  legislature  of  the  state  for 
amendments  to  the  charter,  whose  necessity  is  urged  to  meet  special 
emergencies,  or  alleged  exigencies.  We  are  now  governed  by  portions  of 
four  distinct  charters;  and  although  their  various  provisions  do  not 
absolutely  conflict  with  each  other,  I  cannot  but  feel,  that  a  more  com- 
plete organization  of  our  municipal  affairs  would  have  been  better  secured 
by  one  complete  and  perfect  instrument. 

Various  state  laws  are  also  in  operation,  affecting  the  internal  regulations 
of  our  city,  which,  in  my  judgment,  could  have  been  carried  as  successfully 
into  operation  by  the  action  of  the  municipal  authorities,  without  the 
intervention  of  the  legislature.  This  disposition,  of  late  years,  to  apply 
to  the  legislature  for  amendments  and  alterations  in  our  charter,  as  well  as 
to  existing  state  laws  affecting  our  municipal  organization,  is,  in  my 
opinion,  pernicious  in  its  tendency,  and  derogatory  to  the  dignity  and 
character  of  our  city. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     7 

Originally  possessing  powers  ample  for  all  possible  contingencies,  and 
fully  adequate  to  meet  the  demands  of  municipal  government,  powers, 
conferred  on  us  as  a  city,  and  guaranteed  as  to  their  permanency  and 
efficiency  by  the  constitution  of  our  state,1  and  which  rendered  us  actually 
independent  of  legislative  interference,  we  have  permitted  ourselves  to  be 
subjected  to  the  control  of  the  state  authorities,  until,  although  we  stand 
first  among  the  cities  of  the*  Union,  we  have,  in  truth,  as  few  powers,  and 
as  few  rights  as  the  least  of  them,  and  the  legislative  action  of  each  year 
takes  from  us  some  powers,  and  divests  us  of  some  rights. 

It  cannot  be  expected  that  legislators,  iminformfid  by  observation  as 
to  ;the  actual  wants  of  our  city,  and  unacquainted  with  its  actual  resources. 
can  legislate  alwaysTor  our~frgst  interestsj^and  that  publicjatejeata  and 
pttbtRTgbod  are  otten  made  subservient  to  private_interes 
^  by  our  experience. 


The  sentiments  thus  expressed  were  repeated  by  Mayor  Fer- 
nando Wood  in  his  annual  message  of  1855.2  Referring  to  the  chaos 
of  laws  under  which  the  city  was  governed,  the  mayor  declared  that 
it  was  "beyond  the  ability  of  any  man,  exercising  the  duties  of  his 
office  under  the  city  charter,  to  give  this  people  that  government 
which  appears  to  be  so  generally  expected,  and  which  is  certainly 
so  much  required." 

In  1857  the  legislature  of  ^ew  York  enacted  the  first  of  a  series  of 
statutes  by  the  terms  of  which  certain  important  branches  of  the 
government  of  New  York  City  were  transferred  to  the  control  of 
state-appointed  commissions.3  This  was  the  famous  act  creating 
the  Metropolitan  Police  District  —  an  act  which  was  vigorously 
protested  4  and  so  violently  resisted  that  its  enforcement  led  to  riot 
and  bloodshed  in  the  city.  Five  years  later  it  was  the  matter  of 
"interference"  in  the  financial_affairs  of  the  city  that  Mayor  George 
Opdyke  made~the  subject  of  an  earnestly  uttered  complaint.8 

1  [In  this  broad  statement  the  mayor  was  unquestionably  in  error.] 

2  Documents  of  the  Board  of  Aldermen,  1855,  No.  1.  3  Infra,  36. 

4  See,  for  example,  the  dignified  protest  of  Mayor  Daniel  F.  Tieman,  Documents 
of  the  Board  of  Aldermen,  1858,  No.  1. 

6  George  Opdyke,  Official  Documents,  Addresses,  etc.,  pp.  4,  5.  He  remonstrated 
especially  against  the  practice  of  the  legislature  in  saddling  "doubtful  claims" 
upon  the  city  and  against  the  absurd  and  discriminatory  practice  of  requiring 
that  appropriations  of  New  York  City  should  be  annually  approved  by  the 
legislature. 


8         DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

In  spite  of  these  and  many  similar  protests  legislative  "jnter- 
teence"  in  and  domination  over  the  affairs  of  New  York  City  went 
memlylind  perniciously  on  from  session  to  session  of  the  legislature. 
TJbher  cities  of  the  stat^  in  rough  pioporlion  to  their  size  and  po- 
litical importance,  suffered  likewise.  The  resulting  situation  in 
which  the  cities  of  New  York  found  themselves  in  relation  to  the 
legislature  was  debated  at  length  upon  the  floor  of  the  constitu- 
tional convention  of  1867-68 ; 1  but  the  work  of  this  convention 
was  defeated  at  the  polls.  A  few  years  later  a  commentator  upon 
the  amendments  proposed  by  the  New  York  "  Constitutional  Com- 
mission" of  1873  made  an  ingenious  calculation  which  showed  that, 
on  the  basis  of  the  time  required  for  the  performance  of  the  mere 
routine  steps  in  the  progress  of  every  bill  through  the  legislature, 
the  time  that  would  be  consumed  in  the  enactment  of  the  number 
of  laws  annually  turned  out  would,  if  these  steps  were  actually  fol- 
lowed, be  two  and  a  half  times  the  total  length  of  the  prescribed 
session  of  one  hundred  days.2 

A  very  considerable  proportion  of  these  special  and  local  laws 
were  laws  applying  to  cities  and  villages.  This  was  specifically 
shown  by  the  Evarts  Commission,  which  was  appointed  in  1877  to 
devise  a  plan  for  the  government  of  the  cities  of  New  York.  In  the 
report  which  this  commission  filed  it  was  pointed  out  that  of  the 
808  acts  passed  during  the  session  of  the  legislature  in  1870,  212 
were  acts  relating  to  cities  and  villages,  that  94  of  these  related  to 
cities  and  36  to  the  city  of  New  York  alone.  "These  212  acts," 
declared  the  report,  "occupied  more  than  three-fourths  of  the  two 
thousand  pages  of  the  laws  of  that  year."  3  As  one  evil  of  great 
magnitude  rising  out  of  this  multiplicity  of  laws,  the  commission 
called  attention  to  the_confusion  that  existe^_a£jLrejuit_pJJegisla- 
tion  that  was  so  hastily  and  TnconsidefaEeTy  enacted  as  tobe  fre- 


1  Proceedings  and  Debates  of  the  New  York  Constitutional  Convention,  1867-68, 
IV,  pp.  2926-3180. 

2  L.  Bradford  Prince,  The  Proposed  Amendments  of  the  Constitution  of  New  York, 
pp.  9—13.     This  was  a  pamphlet  written  for  and  indorsed  by  the  law  committee 
of  the  New  York  City  Council  of  Political  Reform. 

1  Report  of  the  Commission  to  Devise  a  Plan  for  the  Government  of  the  Cities  of 
New  York  State,  1877,  p.  19. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES      9 

(juently  conflicting.     This  resulted  naturally  in  general  _obscurity  ) 
anoTuncertainty  as  to  the  meaning  of  the  law  and  consequently,  in"  -= 
an  enormous  amount  of  unnecessary  litigation.     As  Chief  Justice 
Church  declared  in  the  case  of  In  the  Matter  of  Kiernan  :  1 

It  is  scarcely  safe  for  any  one  to  speak  confidently  of  the  exact  condition 
of  the  law  in  respect  to  public  improvements  in  the  cities  of  New  York  and 
Brooklyn.  The  enactments  in  reference  thereto  have  been  modified,  su- 
perseded, and  repealed  so  often  and  to  such  an  extent,  that  it  is  difficult  to 
ascertain  just  what  statutes  are  in  force  at  any  particular  time. 

Referring  to  the  fact  that  some  of  the  laws  enacted  by  the  legis- 
lature were  passed  at  the  behest  of  citizens  who  were  genuinely 
interested  in  promoting  the  good  government  of  particular  cities, 
the  Evarts  Commission  reported  : 

It  may  be  true,  that  the  first  attempts  to  secure  legislative  intervention 
in  the  local  affairs  of  our  principal  cities  were  made  by  good  citizens  in 
the  supposed  interest  of  reform  and  good  government,  and  to  counteract 
the  schemes  of  corrupt  officials.  The  notion  that  legislative  control  was 
the  proper  remedy  was  a  serious  mistake.  The  corrupt  cliques  and  rings 
thus  sought  to  be  baffled  were  quick  to  perceive  that  in  the  business  of 
procuring  special  laws  concerning  local  affairs,  they  could  easily  outmatch 
the  fitful  and  clumsy  labors  of  disinterested  citizens.  The  transfer  of 
the  control  of  the  municipal  reso'urces  from  the  localities  to  the  capital 
had  no  other  effecTTEan~to~l5a«se^ti  like  transfer  of  the  methods^mdurts 
of  coruption,  and  to  make  theTortuSe&::3f:bTircp-^iS^^ 


of  theJo^ies^  Municipal  corruption,  previously  confined  within  terri- 
torial limits,  thenceforth  escaped  all  bounds,  and  spread  to  every  quarter 
of  the  state.  Cities  were  compelled  by  legislation  to  buy  lands  for  parks 
and  places  because  the  owners  wished  to  sell  them  ;  compelled  to  grade, 
pave,  and  sewer  streets  without  inhabitants,  and  for  no  other  purpose  than 
to  award  corrupt  contracts  for  the  work.  Cities  were  compelled  to  pur- 
chase at  the  public  expense  and  at  extravagant  prices,  the  property  neces- 
sary for  streets  and  avenues,  useless  for  any  other  purpose  than  to  make 
a  market  for  the  adjoining  property  thus  improved.  Laws  were  enacted 
abolishing  one  office  and  creating  another  with  the  same  duties,  in  order 
to  transfer  official  emoluments  from  one  man  to  another;  and  laws  to 
change  the  functions  of  officers  with  a  view  only  to  a  new  distribution  of 
patronage,  and  to  lengthen  the  terms  of  offices,  for  no  other  purpose  than 
to  retain  in  place  officers  who  could  not  otherwise  be  elected  or  appointed. 

1  62  New  York,  457.     1875. 


10      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

If  any  one  questions  the  mischievous  results  of  these  practices  he  has 
but  to  note  the  increase  of  debt  and  taxation  in  the  city  of  New  York 
from  1860  to  the  present  time,  during  which  legislative  intervention  in  the 
local  affairs  of  that  city  has  been  most  extensively  asserted.  The  debt 
has  increased  from  eighteen  millions  to  one  hundred  and  thirteen  millions  ; 
and  taxation  for  annual  expenditures  from  nine  to  twenty-eight  millions. 

A  committee  of  the  New  York  Senate,  commonly  known  as  the 
Fassett  Committee,  which  made  a  report  in  1891,  showed  clearly 
that  the  practice  of  the  legislature  in  respect  to  "  interference " 
in  the  affairs  of  cities  had  been  wholly  unaffected  by  the  findings 
of  the  Evarts  Commission.  They  declared  that  in  the  period  of 
six  years  from  1884  to  1889,  1284  statutes  had  been  enacted  in  ap- 
plication to  the  thirty  cities  of  the  state,  of  which  number  390  acts 
had  related  exclusively  to  the  city  of  New  York.1  They  especially 
condemned  the  large  number  of  mandatory  laws  which  had  been 
passed  by  the  legislature  during  the  preceding  twenty  years.  It 
was  the  view  of  the  committee  that  this  was  "the  worst  form  which 
special  legislation  assumes,  the  evils  of  which,  and  the  necessity  of 
curing  which,  have  so  long  been  known,  and  in  regard  to  which 
there  is  apparently  an  almost  complete  unanimity  of  opinion,  as 
shown  chiefly  through  the  long  series  of  official  documents  ema- 
nating from  the  mayors  and  chief  financial  officers  of  all  the  cities 
of  the  state."2 

While  there  is  perhaps  no  state  of  the  Union  in  which  cities  suf- 
fered more  grievously  at  the  hands  of  the  legislature  and  in  which 
the  remonstrance  of  cities  was  more  energetically  and  persistently 
voiced,  New  York  was  by  no  means  unique  in  this  respect.  As 
far  back  as  1868  Mayor  Tomppert,  of  Louisville,  Kentucky,  was 
heard  to  thunder  reproof  at  the  general  assembly  of  that  state  for 
the  "confused  and  fragmentary  condition"  of  the  city  charter  and 
for  the  enactment  of  vitally  important  laws  that  had  "never  been 
thought  or  heard  of"  by  the  people  of  the  city  but  had  been 

1  Senate  Committee  Reports,  Vol.  5,  p.  459. 

*  As  indicative  of  the  extremely  sinister  character  of  some  of  this  legislation, 
see  two  veto  messages  of  Governor  Fowler  in  1892  and  1894  respectively.  Mes- 
sages of  the  Governors,  State  of  New  York,  Lincoln  ed.,  IX,  pp.  64,  490. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     11 

'" lobbied'  through  by  individuals  who  have  private  and  selfish 
ends  to  attain."  l  So  at  a  somewhat  later  date  the  common  coun- 
cil of  Milwaukee  was  heard  to  utter  in  no  uncertain  terms  a  formal 
remonstrance  against  the  practice  pursued  by  the  Wisconsin  leg- 
islature of  increasing  the  salaries  of  city  officials  without  the  rec- 
ommendation of  the  council.2  And  fifteen  years  later  the  council 
of  the  same  city  prepared  a  memorial  to  be  submitted  to  all  of  the 
cities  of  the  state  in  order  that  some  plan  might  be  devised  to  in- 
duce the  legislature  to  cease  tinkering  with  city  charters  for  the 
" benefit  of  the  few"  and  for  "political  spite."  3 

In  his  valedictory  address  of  1889  Mayor  Ames  of  Minneapolis 
declared  that  the  greatest  calamity  that  had  been  inflicted  upon  the 
city  of  Minneapolis  had  been  the  "meddlings"  of  the  legislature. 
"Through  this  agency  our  charter liaslSeen  tinkered  up  to  suit  the 
private  whims  of  obscure  citizens,  and  we  are  to-day  cursed  with 
conflicting  laws  unintelligible  to  citizens  and  inexplicable  by  the 
courts."  4  So  in  his  annual  message  of  1893  Mayor  Pingree  of 
Detroit  declared  that  it  had  "long  been  the  custom  of  individuals 
and  corporations  to  secure  legislation  affecting  the  people  of  De- 
troit for  purely  selfish  motives,  with  the  result  that  we  have  to-day 
a  charter  of  patchwork  that  divides  the  responsibilities  in  many 
channels  and  practically  ties  the  hands  of  the  people's  representa- 
tives, and  renders  them  unable  to  carry  out  their  wishes  for  progress 
sive  local  government."  5  A  year  later  the  same  chief  executive 
felt  it  necessary  to  apologize  to  his  fellow-citizens  for  the  burden 
of  oppressive  legislation  under  which  the  city  had  just  been  placed 
"because  her  mayor  happened  to  be  under  the  ban  of  the  influences 
which  dominated  the  last  legislature." 8 

These  instances  of  protest  are  selected  very  nearly  at  random. 
Similar  utterances  might  be  cited  in  tedious  and  limitless  reitera- 
tion ;  but  this  would  be  merely  to  accumulate  evidence  in  support 
of  a  well-known  and  almost  wholly  undisputed  historical  fact.  In 

1  Municipal  Reports  of  Louisville,  1867,  pp.  6,  7. 

1  Proceedings  of  the  Common  Council  of  Milwaukee,  1886-87,  p.  382. 

8  Ibid.,  1901-02,  p.  1373.  *  Annual  Reports,  City  of  Minneapolis,  1889. 

6  Annual  Reports  of  Detroit,  1893,  p.  5.  e  Ibid.,  1894,  p.  12. 


12      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

practically  every  state  in  which  one  or  more  important  cities  existed, 
the  same  conditions  of  frequent  charter  amendments  prevailed,  and 
vigorous  but  futile  protests  were  raised  against  the  continuance 
of  a  practice  that  was  fraught  with  so  many  and  such  obvious 
evils. 

It  was  perfectly  manifest  that  unless  state  legislatures  could  be 
induced  of  their  own  volition  to  alter  their  attitude  and  reform 
their  practices  in  the  matter  of  enacting  laws  relating  to  cities, 
some  other  remedy  would  have  to  be  found  for  the  solution  of  the 
distressing  problem  of  the  city.  In  most  states,  however,  it  was 
difficult  to  create  state-wide  interest  in  this  problem.  It  seemed 
well-nigh  impossible  to  arouse  a  public  opinion  that  was  strong 
enough  to  intimidate  legislatures.  Rural  inhabitants  were  natu- 
rally indifferent.  Nor  were  the  inhabitants  of  one  city  always 
responsive  to  the  sufferings  of  another.  The  direct  and  indirect 
rewards,  whether  of  a  partisan  or  a  personal  character,  which  were 
offered  to  legislators  in  return  for  the  continuation  of  the  practice 
were,  to  say  the  least,  alluring.  Moreover,  many  members  were 
indifferent ;  many  others  were  ignorant  of  the  actual  effect  of  laws 
for  which  they  voted ;  still  others  were  willing  to  swap  their  votes 
in  return  for  votes  in  favor  of  legislation  relating  to  their  own  local- 
ities ;  and  there  was  everywhere  and  at  all  times  that  ever  present 
strong  inducement  in  this,  as  in  other  matters  of  legislation,  to 
follow  the  party  leaders  with  eyes  closed  and  perhaps  with  hands 
^  opened.  In  spite  of  the  fact,  therefore,  that  local  remonstrance  was 
frequently  raised  and  public  attention  was  sought  to  be  aroused  in 
the  evil  as  a  matter  of  state-wide  concern,  legislatures  for  the  most 
part  were  fairly  secure  in  continuing  the  policy  of  dominating  "in- 
terference" in  the  affairs  of  cities. 


The  Doctrine  of  an  Inherent  Right  of  Local  Self-government 

In  a  few  states  the  courts  came  to  the  rescue  of  harassed  and 
oppressed  cities  with  a  half-measure  of  protection  by  announcing 
a  doctrine  to  the  effect  that,  wholly  in  the  absence  of  any  express 
provision  of  the  constitution,  municipal  corporations  enjoyed 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     13 

certain  inherent  rights  of  local  self-government.  The  earliest 
formulation  of  this  rule  of  law  is  usually  ascribed  to  the  opinion 
that  Judge  Cooley  handed  down  in  the  somewhat  famous  case  of 
the  People  ex  rel.  Le  Roy  v.  Hurlbut l  decided  in  1871.  It  is  open 
to  question,  however,  whether  the  part  of  his  opinion  that  is  com- 
monly quoted  in  support  of  this  doctrine  was  not  merely  dictum ; 
for  in  the  end  he  declared  that  "so  far  as  is  important  to  the  decision 
of  the  case  before  us,  there  is  an  express  recognition  of  the  rights  of 
local  authority  by  the  constitution."  Nor  is  it  absolutely  clear 
that  any  Michigan  case  was  ever  decided  solely  upon  the  applica- 
tion of  this  rule.2  There  can  be  no  question,  however,  that  the  rule 
was  pertinently  applied  in  three  cases  in  Indiana,3  in  one  case  in 
Kentucky,4  and  in  one  case  in  Iowa.5  In  Nebraska  it  received  sup- 
port for  a  period  of  three  years,  when  it  was  summarily  overturned.6 
In  Texas  the  rule  was  applied  in  a  single  case  by  the  court  of 
criminal  appeals,7  a  court  of  last  resort  in  the  state,  but  was  in  the 
same  year  utterly  repudiated  by  the  supreme  court,8  which  was 
the  court  of  last  resort  in  civil  actions.  Cases  in  other  juris- 
dictions have  sometimes  been  cited  as  sustaining  this  doctrine ; 
but  in  spite  of  certain  general  and  unguarded  expressions  of 
opinion,  which  when  isolated  from  their  context  seem  to  lend 
color  of  support,  a  careful  examination  of  the  opinions  delivered 
in  these  cases  reveals  the  fact  that  in  every  one  of  them  decision 
was  reached  by  the  construction  and  application  of  some  specific 

*  24  Mich.  44.     1871. 

2  The  cases  usually  cited  as  supporting  this  rule  are  People  ex  rel.  Attorney 
General  v.  Lothrop,  24  Mich.  235  (1872) ;  People  ex  rel.  Park  Commissioners  v. 
The  Common  Council  of  Detroit,  28  Mich.  228  (1873) ;  People  ex  rel.  Park  Com- 
missioners v.  The  Mayor  of  Detroit,  29  Mich.  343  (1874)  ;  Moreland  v.  Millen, 
126  Mich.  381  (1901) ;  Davidson  v.  Hine,  151  Mich.  294  (1908) ;  Davock  v.  Moore, 
105  Mich.  120  (1895). 

s  State  ex  rel.  Holt  v.  Denny,  118  Ind.  449  (1888) ;  Evansville  v.  State  ex  rel. 
Blend,  118  Ind.  426  (1888) ;  and  State  ex  rel.  Geake  v.  Fox,  158  Ind.  126  (1901). 

4  City  of  Lexington  v.  Thompson,  113  Ky.  540.     1902. 

5  State  v.  Barker,  116  la.  96.     1902. 

•  State  ex  rel.  Attorney  General  v.  Moores,  55  .Neb.  480  (1898) ;   overruled  in 
Redell  v.  Moores,  63  Neb.  219  (1901). 

7  Ex  parte  Lewis,  45  Tex.  Grim.  App.  1.     1903. 

8  Brown  v.  City  of  Galveston,  97  Tex.  1.     1903. 


14      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

provision  of  the  state  constitution  that  guaranteed  this  or  that 
right  to  cities.1 

It  would  not  be  difficult  to  demonstrate  the  utter  sophistry  of 
the  arguments  that  have  been  advanced  in  support  of  the  view  that 
municipal  corporations  enjoy,  regardless  of  any  constitutional 
provision  in  point,  an  inherent  right  of  local  self-government. 
Even  though  the  rights  of  cities  be  regarded  as  of  common  law 
origin,  it  is  well  known  that  the  common  law  is  subordinated  to 
statutory  control ;  and  the  maxim  that  ''statutes  in  derogation  of 
the  common  law  must  be  strictly  construed"  should  not  be  confused 
with  that  which  asserts  that  statutes  in  derogation  of  the  constitu- 
tion are  void.  To  declare  that  at  the  time  of  the  framing  of  our 
first  state  constitution  there  existed  a  " system"  of  local  self- 
government  which  was  tolerably  uniform,  is  merely  to  ignore  the 
easily  ascertainable  facts  of  history.  Apart  from  the  New  England 
township,  it  may  be  said  that  if  there  existed  in  the  early  years  of 
our  national  history  any  thing  that  maybe  referred  to  as  a  "  system/  • 
it  was  a  system  of  centralized  control  over  local  units  of  govern- 
ment rather  than  the  reverse.  Moreover,  it  is  patent  that  when 
the  courts,  in  order  to  settle  the  constitutionality  of  a  statute 
relating  to  local  government,  seek  to  find  in  the  constitution  of 
the  state  an  express  grant  of  authority  to  the  legislaturexrather  than 
an  express  or  specifically  implied  prohibition,  they  simply  abandon 
the  most  fundamental  canon  of  judicial  interpretation  that  has  been 
applied  in  determining  questions  of  legislative  competence  —  a 
canon  which  has  nowhere  been  more  clearly  expressed  than  by 
Judge  Cooley  himself.2 

(It  seems  scarcely  worth  while,  however,  to  enter  here  upon  an 
extended  discussion  of  the  insecure  foundation  upon  which  this 

1  Among  these  cases  may  be  cited  People  ex  reL  Wood  v.  Draper,  15  N.  Y.  532 
(1857) ;  People  v.  Shepard,  36  N.  Y.  286  (1867)  ;  People  ex  rel.  Bolton  v.  Albertson, 
55  N.  Y.  50  (1873) ;   Rathbone  v.  Wirth  150  N.  Y.  459  (1896)  ;  People  v.  Lynch,  51 
Cal.  15  (1875)  —  opinion  of  Judge  McKinstry,  who  spoke  for  himself  alone ;  Luehr- 
man  v.  Taxing  District,  2  Lea  (Tenn.)  425  (1879) ;  People  ex  rel.  McCagg  v.  Mayor 
etc.  of  Chicago,  51  111.  17  (1869) ;   Parks  v.  Board  of  Commissioners,  61  Fed.  Rep. 
436  (1894) ;   Graham  v.  Fresno,  151  Cal.  465  (1907) ;   Helena  Consolidated  Water 
Co.  v.  Steele,  20  Mont.  1  (1897). 

2  Cooley,  Principle*  of  Constitutional  Law,  3d  ed.,  p.  386. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     15 

doctrine  rests.1  The  fact  of  importance  is  that  it  has  been  applied 
by  the  courts  of  very  few  states.  Moreover,  even  in  these  states 
its  application  has  been  limited.  Most  of  the  cases  in  which  it  has 
been  asserted  have  involved  the  single  question  of  the  competence 
of  the  legislature  to  vest  in  some  public  authority  outside  the  city 
-usually  the  legislature  itself  or  the  governor  —  the  power  to 
appoint  certain  officers  who  in  practice  are  commonly  subject  to 
local  election  or  appointment.2  This,  of  course,  is  only  one  aspect 
of  the  "right"  of  local  self-government,  if  such  a  right  can  be  as- 
serted. As  actually  applied,  therefore,  the  doctrine  did  not  pre- 
vent the  legislature  from  "interfering"  with  cities  in  an  infinite 
variety  of  other  respects.  Certainly  it  cannot  be  said  that  the 
cities  of  Kentucky,  Indiana,  and  Iowa  have  in  fact  enjoyed  a  much 
larger  freedom  from  legislative  control  in  the  matter  of  regulating 
their  own  affairs  than  have  the  cities  of  other  states  under  like 
constitutional  status.  That  the  legislature  of  Michigan  was  not 
greatly  hampered  in  its  policy  of  "interference"  is  clearly  indicated 
by  the  above  noted  protests  of  the  mayor  of  Detroit 3  —  protests 
that  were  uttered  more  than  twenty  years  after  the  decision  of  the 
Hurlbut  case. 

The  Doctrine  of  Complete  Legislative  Supremacy  over  Cities 

"It  must  now  be  conceded,"  says  Judge  Dillon,4  "that  the  great 
weight  of  authority  denies  in  toto  the  existence,  in  the  absence  of 
special  constitutional  provisions,  of  any  inherent  right  of  local  self- 
government  which  is  beyond  legislative  control.''  There  is  no  question 

1  See  the  able  refutation  of  Judge  Garrison  in  Attorney  General  ex  rel.  Booth  v, 
McGuinness,  78  N.  J.  L.  346  (1909)  and  the  opinion  of  the  court  in  Brown  ».  City 
of  Galveston,  97  Tex.  1  (1903)  and  Redell  v.  Moores,  63  Neb.  219  (1901).  In  strong 
support  of  the  doctrine  see,  in  addition  to  the  cases  cited  above,  McQuillin,  Munic- 
ipal Corporations,  I,  sees.  54,  69,  70,  107,  164,  167,  169,  and  especially  246.  Indeed 
Judge  McQuillin  indicates  at  more  than  one  point  in  his  treatise  that  this  doctrine 
is  the  established  and  accepted  doctrine  of  our  law  —  than  which  nothing  could  be 
further  from  fact.  See  also  an  article  by  Amasa  M.  Eaton  in  25  Rep.  Am.  Bar  Ass., 
291-372  (1902). 

1  This  is  true  of  practically  all  of  the  cases  above  indicated  except  City  of  Lexing- 
ton ».  Thompson,  113  Ky.  540.  1902.  »  Supra,  11. 

*  Municipal  Corporations,  5th  ed.,  I,  sec.  98,  and  cases  cited  in  note  3,  pp.  156-161 


16      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

that  this  is  a  correct  statement  of  the  generally  accepted  rule 
of  law  upon  this  subject.1  The  well-known  distinction  between 
the  municipality  as  an  agent  of  the  state  and  as  an  organization 
for  the  satisfaction  of  purely  local  needs,  or,  as  otherwise  stated, 
between  the  city  in  its  public  and  governmental  capacity  and  in  its 
private  and  proprietary  capacity  —  a  distinction  that  is  drawn  in 
many  branches  of  the  law  of  municipal  corporations  —  has  no  ap- 
plication whatever  where  there  is  involved  a  question  of  legislative 
authority  over  such  corporations  in  the  absence  of  constitutional 
restriction.  As  Mr.  Justice  Hunt  declared  in  Barnes  v.  District  of 
Columbia,2  "We  do  not  view  its  acts  as  sometimes  those  of  an 
agency  of  the  state,  and  at  others  those  of  a  municipality ;  but  that, 
its  character  remaining  at  all  times  the  same,  it  is  great  or  small 
according  as  the  legislature  shall  extend  or  contract  its  sphere  of 
action."  Indeed,  so  widely  is  this  rule  accepted  as  to  the  absolute 
supremacy  of  the  legislature  (barring  the  expression  or  clear  impli- 
cation of  constitutional  restriction)  that  the  courts  in  most  juris- 
dictions are  seldom  requested  to  declare  void  a  law  regulating  a 
municipal  affair  except  by  reference  to  some  constitutional  provi- 
sion in  point.  And  certainly  state  legislatures  have  from  the  be- 
ginning of  our  history  as  a  nation  acted  upon  the  assumption 
of  their  complete  legal  supremacy  in  this  regard.  No  matter  what 
historical  facts  or  legal  theories  may  be  advanced  against  the  rule 
of  law  in  question,  and  no  matter  how  deplorable  may  have  been  the 
results  of  its  application,  no  one  can  question  the  fact  that  legis- 
latures have  applied  this  rule  in  practice  upon  a  far  more  extensive 
scale  than  any  other  rule  relating  to  their  competence.  And  after 
all,  a  fact  of  substantially  universal  and  uncontested  legislative 
practice  for  more  than  a  century  gives  infinitely  greater  weight  to 
a  rule  of  law  than  any  amount  of  reiteration  by  the  courts. 

1  Mr.  Amasa  M.  Eaton  expresses  the  view,  without,  however,  presenting  any 
detailed  analysis  of  the  cases,  that  the  pronouncement  of  this  rule  has  commonly 
been  in  the  nature  of  dictum.  See  25  Rep.  Am.  Bar  Ass.,  292.  It  is  true,  perhaps, 
that  so  widely  accepted  and  so  fundamental  a  rule  of  law  has  found  a  somewhat 
unessential  place  in  the  general  introduction  to  a  number  of  opinions.  Even  so, 
it  is  highly  questionable  whether  the  enunciation  of  the  rule  may  be  regarded  as 
dictum  in  many  of  the  cases  that  are  cited  by  Mr.  Eaton  in  support  of  this  view. 

a  91  U.  S.  540.     1875. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     17 

When  the  deep-rooted  evil  of  legislative  domination  in  the  af- 
fairs of  cities  grew  into  such  proportions  that  it  became  no  longer 
tolerable,  reformers  set  about  to  find  a  remedy.  The  general  means 
to  be  employed  was  of  course  obvious.  The  American  system  of 
protecting  private  rights  against  governmental  interference  was 
well  known.  It  had  proved  perhaps  in  some  respects  all  too  success- 
ful. It  involved  the  writing  into  constitutions  of  limitations  upon 
the  powers  of  the  government  —  and  especially  upon  the  powers  of 
the  legislature  —  and  the  vesting  of  authority  in  the  courts  to  de- 
clare void  any  statute  enacted  hi  violation  of  these  limitations.  It 
was  thus  that  our  sphere  of  private  rights  and  immunities  against 
governmental  encroachment  was  established,  with  the  courts  as 
guardians  and  conservators.  Here  were  municipal  corporations, 
however,  suffering  under  an  unbearable  amount  of  legislative 
"encroachment"  upon  their  " rights."  What  was  more  natural] 
than  the  establishment,  by  means  of  the  introduction  of  prohibi-  I 
tions  into  the  constitution,  of  a  sphere  of  municipal  immunity/ 
against  the  tyranny  of  the  legislature.  In  the  evolution  of  our 
state  institutions  we  have  sought  to  outlaw  innumerable  legislative 
abuses  through  the  medium  of  constitutional  provisions.  Not 
only  have  we  occupied  large  portions  of  the  legislative  field  by  the 
incorporation  of  affirmative  provisions,  and  to  that  extent  imposed 
negative  limitations  upon  the  legislature,  but  we  have  also  laid 
down  many  positive  and  emphatic  prohibitions.  This  method  of 
reform  appeared  to  be  a  peculiarly  appropriate  remedy  for  the  un- 
happy situation  of  our  cities ;  for  there  was  not  a  little  in  common 
between  the  rights  of  persons  to  liberty  and  property  —  the 
protection  of  which  had  been  the  object  of  most  of  the  early  limi- 
tations imposed  upon  legislatures  —  and  the  " rights"  to  liberty 
and  property  which  were  now  demanded  for  cities. 

The  Degree  of  Protection  which  Cities  enjoy  under  the  Clauses  of  the 
Federal  Constitution  guaranteeing  Rights  and  Immunities  to  Persons 

Before  we  attempt  to  marshal  in  brief  review  the  various  provi- 
sions that  were  introduced  into  state  constitutions  with  the  end  in 


18      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

view  of  affording  protection  to  the  city,  it  seems  appropriate  to 
remark  that  the  municipal  corporation  is  everywhere  a  legal  person, 
endowed  like  private  corporations  with  the  capacity  to  sue  and  be 
sued,  to  take  title  to  property,  to  contract,  and  to  perform  other 
acts  similar  to  the  acts  of  natural  persons.  Now  as  everybody 
knows  the  constitution  of  the  United  States,  as  well  as  the  constitu- 
tions of  the  several  states,  contains  certain  important  limitations 
upon  the  powers  of  the  states  in  behalf  of  the  rights  of  persons. 
Broadly  speaking,  it  may  be  said  that  since  the  adoption  of  the  four- 
teenth amendment  with  its  well-known  sweeping  phrases  the  more 
important  prohibitions  of  the  state  constitutions  in  this  regard  have 
been  gathered  into  the  national  constitution.  In  other  words,  the 
more  important  questions  relating  to  personal  or  property  rights 
have  become  federal  questions.  As  bearing  upon  the  subject  in 
hand  it  is  obviously  pertinent  to  make  inquiry  concerning  the  ex- 
tent to  which  the  city  has  been  regarded  as  being  a  person  within 
the  meaning  of  the  clauses  of  our  constitutions  —  and  especially 
of  our  federal  constitution  —  which  offer  protection  to  persons 
generally. 

One  of  these  great  clauses  declares  that  no  state  shall  pass  any 
law  impairing  the  obligation  of  a  contract.  In  the  famous  Dart- 
mouth College  case l  Chief  Justice  Marshall  held  that  a  corporate 
charter  issued  by  public  authority  constituted  a  contract  between 
the  state  and  the  corporators.  From  the  viewpoint  of  public 
policy  this  doctrine  has  produced  certain  disastrous  consequences 
even  when  limited  in  its  application  to  private  corporations.  As 
applied  to  public  municipal  corporations,  its  results  would  have 
been  little  short  of  monstrous.  In  the  Dartmouth  College  case  it 
was  clearly  intimated  that  the  doctrine  would  not  be  applicable 
to  charters  of  public  corporations ;  and  as  soon  as  the  question  was 
squarely  presented  to  the  Supreme  Court  this  intimation  was 
transformed  into  a  declaration.  Thus  Mr.  Justice  Clifford,  re- 
ferring to  municipal  corporations  in  the  case  of  Mt.  Pleasant  v. 
Beckwith,2  said : 

»  Trustees  of  Dartmouth  College  u.  Woodward,  4  Wheat.  518.     1819. 
2  100  U.  S.  514.     1879. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES      19 

They  cannot  have  the  least  pretension  to  sustain  their  privileges  or 
their  existence  upon  anything  like  a  contract  between  themselves  and  the 
legislature  of  the  state,  because  there  is  not  and  cannot  be  any  reciprocity 
of  stipulation  between  the  parties  and  for  the  further  reason  that  their 
objects  and  duties  are  utterly  incompatible  with  everything  partaking  of 
the  nature  of  compact. 

In  other  words,  it  was  clearly  declared  that  a  charter  of  a  munici- 
pal corporation  is  emphatically  not  to  be  regarded  as  a  contract 
between  the  state  and  the  city.  The  claim  cannot  be  made, 
therefore,  under  any  circumstances  that  legislation  which  inter- 
feres with  the  "rights"  or  powers  of  a  municipal  corporation  as 
established  by  its  charter  impairs  the  obligation  of  a  contract  with 
the  state. 

The  United  States  Supreme  Court  has  never  departed  from 
this  view  which  wholly  denies  the  existence  of  anything  like  a 
contractual  relation  between  the  city  and  the  state  arising  out 
of  the  city's  charter  of  incorporation.1  And  although  it  must 
be  admitted  that  in  two  fairly  recent  cases  views  of  somewhat 
doubtful  import  have  been  expressed  by  the  court  upon  this 

1  Referring  to  the  transference  from  the  colonial  governor  to  the  state  legislature 
of  the  power  to  grant  municipal  charters,  Professor  Goodnow  says :  "This  difference 
in  the  incorporating  authority  was  destined  to  have  an  important  influence  on  the 
position  of  the  community  that  was  incorporated.  For  the  charter  that  was  granted 
by  the  governor  was,  like  the  municipal  charter  which  was  granted  in  England  by 
the  crown,  regarded  as  something  in  the  nature  of  a  contract  between  the  executive 
part  of  the  colonial  government  and  the  community  incorporated.  The  municipal 
charter,  on  that  account,  was  not  believed  to  be  capable  of  amendment  except  as 
the  result  of  an  agreement  between  both  parties  to  the  contract.  When,  however, 
a  charter  was  granted  by  the  legislature,  it  was  regarded  not  so  much  as  in  the  nature 
of  a  contract,  but  as  an  ordinary  act  of  legislation  which,  like  all  acts  of  legislation, 
was  capable  of  amendment  by  the  action  of  the  legislature  alone."  City  Govern- 
ment in  the  United  States,  pp.  47-48.  While  the  municipal  charter  may  not  have 
been  "believed  to  be  capable  of  amendment  "  without  the  consent  of  the  corporation, 
it  must  not  be  understood  that  this  was  an  established  rule  of  law  in  the  colonies. 
In  point  of  fact  such  charters  were  not  often  amended,  and  it  is  probable  that  the 
question  as  to  whether  the  governor  enjoyed  the  power  to  amend  them  without  cor- 
porate consent  was  never  presented  to  the  courts.  It  was  doubtless  the  practice 
to  amend  them  only  upon  application.  But  this  was  a  practice  that  was  also  usually 
followed  by  state  legislatures  in  the  early  days  of  their  exercise  of  this  power.  See 
supra,  5. 


20   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

point,1  it  nevertheless  remains  that  the  court  has  never  clearly 
established  the  doctrine  that  even  in  its  "  private  and  proprietary 
rights  and  interests"  -whatever  definitive  scope  that  phrase 
may  import  —  the  city  enjoys  immunity  from  legislative  inter- 
ference under  the  contract  clause.2  It  is  significant,  moreover, 
that  no  law  of  any  state  has  ever  been  held  void  by  the  highest 
court  of  the  land  upon  the  ground  that  it  impaired  the  obligation 
of  a  contract  entered  into  by  the  state  with  one  of  its  cities. 

In  the  reported  decisions  of  the  state  courts  a  few  cases  may  in- 
deed be  found  in  which  this  clause  has  been  successfully  invoked 
to  defeat  legislation  interfering  with  the  " rights"  of  cities,3  and  a 
few  other  cases  may  be  found  in  which  the  applicableness  of  this 
clause  has  been  put  forth  in  the  nature  of  dictum.4  In  none  of 
these  cases,  however,  did  the  courts  go  so  far  as  to  declare  that  the 
charter  of  a  municipal  corporation  constituted  an  inviolable  con- 
tract with  the  state.  They  merely  asserted  or  implied  that  as  to 
some  specific  right  '• —  and  in  most  of  these  cases  the  right  claimed 
was  a  property  right  —  the  city  enjoyed  a  degree  of  protection 
against  legislative  spoliation  under  the  contract  clause  of  the  fed- 
eral constitution  because,  in  the  view  of  the  court,  the  particular 
right  involved  was  enjoyed  by  the  city  in  a  capacity  somewhat 

1  New  Orleans  v.  New  Orleans  Water  Works  Co.  142  U.  S.  79  (1891) ;  Coving- 
ton  v.  Kentucky,  173  U.  S.,  231  (1898).     For  a  discussion  of  these  cases  see  McBain, 
"The  Rights  of  Municipal  Corporations  under  the  Contract  Clause  of  the  Federal 
Constitution,"  in  National  Municipal  Review,  3  :  284  ff. 

2  For  a  contrary  assertion  see  McQuillin,  Municipal  Corporations,  I,  pp.  378,  549. 

3  Grogan  v.  San  Francisco,  18  Cal.  590  (1861) ;   Spaulding  v.  Andover,  54  N.  H. 
38  (1873)  ;    Webb  v.  The  Mayor  etc.  of  New  York,  64  Howard's  Pr.    10   (1882). 
For  discussion  of  these  cases  see  National  Municipal  Review,  3 :  284.     The  cases  of 
Trustees  v.  Bradbury,  11  Me.  118  (1834) ;   Ellerman  v.  McMains,  30  La.  Ann.  190 
(1878) ;  and  Town  of  Milwaukee  v.  City  of  Milwaukee,  12  Wis.  103  (1860),  although 
sometimes  cited  in  support  of  this  doctrine,  are  not  in  fact  in  point.     See  National 
Municipal  Review,  3  :  292,  n.  17. 

«  Benson  v.  The  Mayor  etc.  of  New  York,  10  Barb.  (N.  Y.)  223  (1850) ;  Dar- 
lington v.  The  Mayor  etc.  of  New  York,  31  N.  Y.  164  (1865) ;  County  of  Richland 
v.  County  of  Lawrence,  12  111.  1  (1850) ;  State  v.  Haben,  22  Wis.  97  (1867) ;  Du- 
buque  v.  111.  Central  Railroad  Co.,  39  la.  56  (1874) ;  Gutzweller  v.  The  People,  14  111. 
142  (1852) ;  People  v.  Morris,  13  Wend.  (N.  Y.)  325  (1835) ;  Sinton  v.  Ashbury, 
41  Cal.  525  (1871) ;  San  Francisco  v.  Canavan,  42  Cal.  541  (1872).  For  discussion 
of  these  cases  see  National  Municipal  Review,  3  :  293-297. 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     21 

vaguely  described  as  its  "private  or  proprietary"  capacity.1  It  is 
a  highly  significant  fact,  however,  that  it  is  possible  to  cite  only 
three  specific  instances  in-  which  cities  have  actually  received  at 
the  hands  of  state  courts  any  protection  founded  upon  the  view 
that  the  legislature  had  entered  into  a  contract  with  the  city. 
Moreover,  it  is  quite  possible  to  cite  numerous  decisions  of  the 
courts  in  which  the  doctrine  has  been  laid  down  without  qualifica- 
tion of  any  kind  —  even  as  to  "private  and  proprietary  rights  and 
interests"  —  that  the  city  enjoys  no  protection  whatever  in  its 
rights,  powers,  or  privileges  under  the  contract  clause  of  the 
federal  constitution.  It  seems  not  unreasonable  to  conclude, 
therefore,  that  for  practical  purposes  municipal  corporations  have 
enjoye^-^Tvery  negligible  degree  of  protection  under  this  famous 
clause  of  the  federal  constitution  —  a  clause  which,  under  judicial 
interpretation  following  the  Dartmouth  College  case,  became  so 
powerful  an  instrument  of  unreasonable  and  impolitic  protection 
to  private  corporations  that  the  states  were  compelled  to  nullify 
its  effect  by  the  enactment  of  general  statutory  or  constitutional 
provisions  reserving  the  power  to  amend,  alter,  and  abolish  the 
charter  of  any  such  corporation. 

As  a  protector  of  the  liberty  and  property  rights  of  persons 
against  adverse  legislative  action  on  the  part  of  the  states,  the 
clause  of  the  fourteenth  amendment  which  declares  that  no  state 
shall  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law  came  later  in  point  of  time  than  the  contract  clause, 
which  was  a  part  of  the  original  instrument.  As  events  proved, 
however,  this  clause  established  a  degree  of  protection  for  persons 
both  natural  and  corporate  which  was  far  more  efficacious  than  that 
afforded  by  the  contract  clause.  Moreover,  it  was  beyond  the 
power  of  states  to  nullify  even  in  part  the  effect  of  the  guarantee  of 
due  process  of  law  as  they  had  been  able  to  emasculate  in  its  appli- 
cation to  corporate  charters  the  effect  of  the  guarantee  of  the  in- 
violability of  contracts.  Now  the  question  arises :  what  degree 

1  For  a  discussion  of  the  vagueness  of  this  capacity  as  concretely  evidenced  by 
the  decision  of  the  courts  upon  this  subject,  see  ibid.,  p.  302. 


22       DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

of  protection  does  the  city  as  a  legal  person  enjoy  under  this  far- 
reaching  provision  of  the  fourteenth  amendment?  In  consider- 
ing this  question,  it  is  necessary  to  hark  back  to  the  decisions  of 
state  courts  antedating  the  adoption  of  the  fourteenth  amendment 
to  the  federal  constitution ;  for  it  is  a  fact  that  many  of  the  earlier 
state  constitutions  embodied  in  their  bills  of  rights  provisions 
which  were  either  identical  with  or  similar  in  purport  to  this 
guarantee  as  it  was  in  1868  incorporated  into  the  fundamental  law 
of  the  nation. 

The  phrase  "due  process  of  law"  has  been  considered  by  the 
courts  of  the  states,  as  well  as  by  the  Supreme  Court  of  the  United 
States,  in  its  application  to  the  rights  of  municipal  corporations 
from  a  number  of  different  angles.  In  consideration  of  the  declared 
supremacy  of  the  legislature  over  municipal  corporations,  of  the 
extended  scale  upon  which  state  legislatures  have  "interfered" 
with  cities,  and  of  the  fact  that  such  corporations  commonly  pos- 
sess a  large  amount  of  property,  it  is  not  surprising  that  the  appli- 
cableness  of  the  guarantee  of  due  process  of  law  to  the  case  of  cities 
should  have  been  presented  in  a  variety  of  forms.  This  broad 
question  cannot  be  discussed  here  in  anything  like  completeness. 
A  few  important  points  may,  however,  be  indicated. 

First,  then,  it  may  be  stated  that  even  at  the  crest  of  their  high- 
handedness state  legislatures  have  seldom  ventured  so  far  as  to 
attempt  to  transfer  the  property  of  a  city  directly  to  a  private 
person.  Only  in  a  few  instances  have  such  attempts  been  made. 
In  these  the  courts  have  not  hesitated  to  declare  that  against  such 
audacious  legislative  spoliation  the  city,  like  any  other  person, 
enjoys  the  protection  of  the  guarantee  of  due  process  of  law.1 

»  In  Benson  v.  The  Mayor,  10  Barb.  (N.  Y.)  223  (1850),  the  court  declared  that 
the  city  of  New  York  could  not  be  deprived  of  its  ferry  franchises  because  of  the 
sacredness  of  vested  rights ;  but  in  last  analysis  the  opinion  of  the  court  in  this 
regard  seems  to  have  been  dictum.  Proprietors  of  Mt.  Hope  Cemetery  ».  City  of 
Boston,  158  Mass.  509  (1893)  is  doubtless  the  leading  case  upon  this  point.  See 
also  New  Orleans,  Mobile  &  Chattanooga  Rd.  Co.  v.  New  Orleans,  26  La.  Ann. 
517  (1874),  where  a  legislative  attempt  to  transfer  a  municipal  waterfront  to  a  rail- 
way company  was  defeated ;  Memphis  Freight  Co.  v.  Mayor  etc.  of  Memphis, 
4  Cold.  (Tenn.)  419  (1867),  where  a  somewhat  similar  question  was  decided ;  Port- 
land &  Willamette  Valley  R.  R.  Co.  v.  Portland,  14  Ore.  188  (1886),  where  a  like 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     23 

The  only  exception  to  this  seems  to  be,  by  the  judgment  of  the 
highest  court  of  the  land,  that  the  legislature  may  require  a  munic- 
ipal corporation  to  restore  to  taxpayers  any  property  that  has  been 
acquired  by  taxation,  no  matter  what  form  such  property  ma 
have  assumed.1  Naturally,  however,  restitution  of  this  character 
has  seldom  been  forced  upon  a  municipal  corporation. 

On  the  other  hand,  a  wholly  different  question  has  arisen  where 
the  legislature  has  essayed  to  transfer  the  property  of  a  city  with 
or  without  a  divergence  of  use  to  another  public  agency  —  such, 
for  example,  as  a  state-appointed  commission,  or  another  local 
corporation,  whether  upon  a  change  of  boundaries  by  division  or 
annexation  of  territory,  or  simply  upon  the  creation  over  the  same 
or  practically  the  same  territory  of  a  public  corporation  wholly 
distinct  from  the  city  as  such.  An  intelligible  discussion  of  the 
manifold  phases  of  the  complicated  problem  presented  by  such 
legislative  actions  would  necessitate  a  critical  examination  of 
numerous  cases  —  an  examination  which  it  seems  wholly  unneces- 
sary to  make  here.  Let  it  suffice  to  say,  without  the  citation  of 
cases,  which  would  be  confusing  and  meaningless  in  the  absence 
of  analysis,  that  many  of  the  opinions  expressed  by  the  courts  upon 
the  points  thus  involved  are  far  from  convincing  even  from  the 
viewpoint  of  abstract  justice,  and  that  the  books  hold  very  few 
cases  indeed  in  which  the  " rights"  of  the  city  under  these  various 
circumstances  have  been  successfully  defended  under  the  guarantee 
of  due  process  of  law.  ItTiTur  UUbes  uf  this  kind  that  with  few 
exceptions  the  doctrine  of  legislative  supremacy  over  the  political 
subdivisions  of  the  state  has  been  upheld  with  little  if  any  regard 
for  the  property  rights  of  these  subdivisions.  The  personal  char- 
acter of  the  city  has,  in  other  words,  been  ignored  or  lost  sight  of 
in  its  political  and  subdivisional  character.  Not  even  the  dis- 

question  was  discussed,  but  where  decision  was  given  against  the  right  of  the  city  to 
protection,  on  the  ground  that  a  railroad  company  was  a  public  agency  of  the  state ; 
Milam  County  v.  Bateman,  54  Tex.  153  (1880),  where,  however,  the  title  of  a  county 
to  school  lands  over  against  the  claims  of  preemptors  favored  by  the  legislature 
was  apparently  established  by  an  express  provision  of  the  state  constitution. 

1  Board  of  Commissioners  of  Tippecanoe  County  v.  Lucas,  93  U.  S.  108  (1876) ; 
Essex  Public  Road  Board  v.  Skinkle,  140  U.  S.  334  (1890). 


24      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

tinction  between  the  public  or  governmental  property  of  the  cor- 
poration and  its  private  or  proprietary  property  has  been  applied 
with  much  actual  advantage  to  the  city. 

Again  it  may  be  remarked  that,  while  the  constitutionality  of 
so-called  curative  acts  as  applied  to  the  relations  of  private  persons 
has  been  fully  recognized,  it  would  not  be  difficult  to  show  that  in 
practice  the  allowance  by  the  legislature  of  claims  against  cities 
has  not  infrequently  been  tantamount  to  the  creation  of  such  claims 
where  none  in  fact  existed,  either  in  morals  or  in  equity.  It  is 
doubtless  true  that  most  of  the  innumerable  cases  in  which  legis- 
lation of  this  kind  has  been  considered  have  involved  nothing  more 
than  the  curing  of  technical  irregularities  that  stood  in  the  way  of 
the  legal  enforcement  of  claims  that  were  otherwise  entirely  just. 
It  is  to  be  noted,  nevertheless,  that  the  arguments  advanced  by 
the  courts  in  support  of  the  validity  of  remedial  statutes  as  applied 
to  cities  have  often  been  wholly  different  from  the  arguments  em- 
ployed to  sustain  curative  acts  generally.  Thus  in  one  of  the 
leading  cases  upon  this  subject,  which  has  perhaps  been  somewhat 
modified  but  never  overruled,  the  competence  of  the  legislature 
in  this  regard  was  rested  upon  its  power  to  compel  a  municipal 
corporation  to  impose  taxes  for  any  purpose  whatever.1  In  other 
w  cases  the  authority  of  the  legislature  has  been  upheld  upon  the 
familiar  ground  that  the  city  is  merely  a  political  subdivision  of  the 
state  and  as  such  is  subject  to  the  control  of  the  legislature.2  It 
is  needless  to  say  that  the  application  of  such  doctrines  places  the 
city  in  respect  to  the  matter  of  curative  legislation  in  a  position  that 
is  fundamentally  different  from  that  of  private  persons.  It  is 
worthy  of  note  also  that  statutes  of  this  kind  have  been  sustained 
although  they  in  fact  deprived  municipal  corporations  of  all  oppor- 
tunity to  contest  before  the  courts  the  amounts  of  the  claims  that 
were  validated.3 

1  Guilford  v.  The  Supervisors  of  Chenango  County,  13  N.  Y.  143.     1855. 

2  New  Orleans  v.  Clark,  95  U.  S.  644  (1877) ;   People  ex  rel.  Blanding  ».  Burr, 
13  Cal.  343  (1859). 

3  Guilford  v.  The  Supervisors  of  Chenango  County,  supra ;  Brewster  v.  Syracuse, 
19  N.  Y.  116  (1859),  where  the  claim  was  in  fact,  however,  against  property  owners 
rather  than  the  city;    Guthrie  National  Bank  v.  Guthrie,  173  U.  S.  528  (1898)  ; 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     25 

It  is  not  without  significance,  moreover,  that  the  books  hold 
very  few  cases  indeed  in  which  the  legislative  validation  of  a  claim 
against  a  municipal  corporation  has  been  defeated  by  the  applica- 
tion of  the  guarantee  of  due  process  of  law.1  On  the  other  hand, 
it  is  unquestionable  that  in  practice  the  legislature  has  frequently 
gone  so  far  as  to  create  a  claim  against  a  city  where  none  of  any  kind 
in  fact  existed.  There  are  a  few  cases  at  least  which  apparently 
sustain  this  competence.2 

Matter  of  Cullen,  53  Hun  (N.  Y.)  534  (1889) ;  Syracuse  v.  Hubbard,  64  N.  Y.  App. 
Div.  587  (1901).    In  these  cases  the  point  here  noted  was  not  even  adverted  to. 

1  The  following  cases  may  be  noted,  although  this  principle  was  clearly  applied 
in  few  of  these  and  the  doctrines  of  most  of  them  are  open  to  grave  criticism. 

People  ex  rel.  Baldwin  ».  Haws,  37  Barb.  (N.  Y.)  440  (1862)  and  Baldwin  v. 
Mayor  etc.  of  New  York,  45  Barb.  (N.  Y.)  359  (1865),  where  in  the  light  of  the  doc- 
trine of  the  Guilford  case,  supra,  which  was  not  overruled,  an  utterly,  sophistical 
course  of  reasoning  was  employed  —  reasoning  which  was  severely  criticized  by  the 
highest  court  of  the  state  in  a  dictum  expressed  in  Darlington  v.  The  Mayor,  31  N.  Y. 
164  (1865)  ;  Horton  ».  The  Town  of  Thompson,  71  N.  Y.  513  (1878),  and  Harden- 
bergh  v.  Van  Keuren,  16  Hun  (N.  Y.)  17  (1878),  which  applied  the  extremely 
attenuated  doctrine  of  People  ».  Batchellor,  53  N.  Y.  128  (1873) ;  Marshall  v. 
Silliman,  61  111.  218  (1871) ;  Wiley  v.  Silliman,  62  111.  170  (1871) ;  Barnes  v.  Town 
of  Lacon,  84  111.  461  (1877) ;  Williams  v.  Town  of  Roberts,  88  El.  11  (1878) ;  Gaddis 
t>.  Richland  County,  92  111.  119  (1879).  All  of  these  Illinois  cases  involved  acts 
which  sought  to  validate  bond  issues  in  aid  of  railways.  Their  wholly  unconvincing 
reasoning  was  doubtless  prompted  by  the  determination  of  the  courts  to  check  the 
speculative  recklessness  of  municipal  corporations.  See  McBain,  "Taxation  for 
a  Private  Purpose,"  in  Political  Science  Quarterly,  29 :  185. 

Other  cases  in  which  such  curative  acts  were  held  void  were  Hasbrouck  v.  Mil- 
waukee, 13  Wis.  42  (1860) ;  Shawnee  County  v.  Carter,  2  Kan.  115  (1863) ;  Berkeley 
v.  The  Board  of  Education,  58  S.  W.  506  (1900).  In  any  fair  view  it  must  be  said, 
however,  that  these  cases  are  wholly  contrary  to  an  overwhelming  weight  of 
authority.  Shearer  v.  The  Board  of  Supervisors,  87  N.  W.  789  (1901)  was  in 
harmony  with  the  highly  questionable  doctrine  of  the  Illinois  railway  aid  cases. 
Hoagland  v.  Sacramento,  52  Cal.  142  (1877)  declared  an  act  void  on  the  clear  and 
understandable  ground  that  it  created  a  claim  where  none  of  any  kind  existed ;  but 
this  case  is  unique. 

Numerous  other  cases  are  sometimes  cited  as  instances  of  curative  acts  held 
void ;  but  a  careful  reading  of  these  cases  discloses  the  fact  that  most  if  not  all  of 
them  turned  upon  one  of  the  following  propositions:  (1)  that  the  legislature  could 
not  validate  a  claim  growing  out  of  an  unconstitutional  act ;  or  (2)  that  the  re- 
medial statute  must  itself  conform  to  tbe  requirements  of  the  constitution. 

2  See,  for  example,  State  ex  rel.  Hernandez  «.  Flanders,  24  La.  Ann.  57  (1872)  ; 
Matter  of  Cullen,  53  Hun  (N.  Y.)  534  (1889)  ;  and  possibly  Creighton  v.  San  Fran- 
cisco, 42  Cal.  446  (1871). 


26   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

In  view,  therefore,  not  only  of  the  law  as  laid  down  by  the  courts 
but  also  of  the  well-known  fact  that  municipal  corporations  have  in 
countless  instances  been  outrageously  imposed  upon  in  this  matter 
of  the  validation  of  claims  by  the  legislature,  it  seems  fair  to  con- 
clude that  on  the  whole  the  city  has  enjoyed^othingjike  the  dej 
gree  of  protection  which  a  private  person  or  corporation  in,similar 
plight  might  have  invoked  under  the  requirement  of  due  process 
of  law. 

In  a  few  cases  the  doctrine  has  been  asserted  that  for  the  legis- 
lature to  compel  a  municipal  corporation  to  levy  a  tax  or  incur  a 
debt  for  a  strictly  local  purpose  would  be  to  deprive  such  corpora- 
tion of  property  without  due  process  of  law.  This  doctrine  has, 
however,  received  only  a  very  limited  acceptance  and  is  utterly 
refuted  by  the  common  practice  of  state  legislatures  from  time  im- 
memorial.'1 It  may  be  dismissed  as  of  negligible  consideration. 

In  a  few  cases  also  statutes  which  limit  the  hours  of  labor  or  fix 
minimum  wages  on  municipal  public  works,  whether  carried  on  by 
direct  employment  of  labor  or  under  contract,  have  been  declared 
void  on  the  ground  that  such  statutes  impaired  that  freedom  of  con- 
tract which  is  guaranteed  by  the  requirement  of  due  process  of  law.2 
But  the  contrary  rule  has  been  applied  in  perhaps  a  larger  number 
of  jurisdictions,  including  that  of  the  United  States  Supreme  Court, 
whose  opinion  upon  this  subject  is  manifestly  controlling.3  More- 
over, there  is  little  question  that  even  where  this  right  of  freedom  of 
contract  has  been  sustained  the  courts  have  been  influenced  by  con- 
sideration of  the  rights  of  contractors  rather  than  the  rights  of  munic- 
ipal corporations ;  and  certainly  this  doctrine  has  hi  practice  been 
utterly  ignored  by  the  legislature  in  those  almost  universal  charter 
provisions  which  impose  upon  cities  limitations  in  respect  to  their 

1  For  a  discussion  of  this  doctrine  see  McBain,  "Due  Process  of  Law  and  the 
Power  of  the  Legislature  to  Compel  a  Municipal  Corporation  to  Levy  a  Tax  or 
Incur  a  Debt  for  a  Strictly  Local  Purpose,"  in  Columbia  Law  Review,  14  :  407. 

1  People  ex  rel  Rodgers  v.  Coler,  166  N.  Y.  1  (1901) ;  Cleveland  v.  The  Clements 
Bros.  Construction  Co.,  67  Oh.  St.  197  (1902) ;  Streets.  Varney  Electrical  Sup.  Co., 
160  Ind.  338  (1902). 

3  Atkin  v.  Kansas,  191  U.  S.  207  (1903) ;  In  re  Dalton,  61  Kans.  257  (1899) ;  Keefe 
v.  People,  37  Colo.  317  (1906) ;  Malette  v.  Spokane,  77  Wash.  205  (1913).  See  also- 
Burns  v.  The  City  of  New  York,  121  N.  Y.  App.  Div.  180  (1907). 


THE  SCOPE  OF  LEGISLATIVE  POWER  OVER  CITIES     27 

contractual  operations.  Would  the  courts,  for  example,  sustain 
for  an  instant  a  law  which  required  private  persons  to  award  every 
contract  to  a  highest  bidder  after  advertising  for  sealed  proposals  ? 

The  foregoing  discussion  indicates  very  briefly  the  principal 
forms  in  which  the  question  has  been  or  could  be  presented  as  to  the 
extent  to  which  a  municipal  corporation  may  successfully  invoke 
the  guarantee  of  due  process  of  law  to  secure  protection  against 
legislative  encroachment  upon  its  rights  as  a  legal  person.  Even 
from  this  inadequate  survey  it  is  manifest  that  in  the  cases  which 
have  or  might  have  dealt  with  one  or  more  phases  of  this  broad 
subject  there  has  been  an  ever  present  conflict  between  the  doctrine 
of  legislative  supremacy  over  the  subordinate  political  divisions 
of  the  state  and  the  doctrine  of  vested  rights  as  applied  to  such 
diyisions  upon  the  basis  of  their  corporate  character.  It  cannot  be 
said  that  the  protection  of  due  process  of  law  has  been  always  be- 
yond the  reach  of  the  invaded  city.  In  some  situations  it  has 
been  and  still  is  available.  In  comparison,  however,  with  the  ex- 
tent to  which  this  protection  would  be  obviously  accessible  to  pri- 
vate corporations  under  more  or  less  similar  circumstances,  it  must 
be  frankly  recognized  that  the  rights  which  the  city  has  been  able 
to  assert  under  this  safeguard  have  been  almost  negligible. 

As  for  the  federal  guarantee  of  the  equal  protection  of  the  laws 
it  need  merely  be  stated  that  there  have  been  only  one  or  two  cases 
in  which  the  contention  has  been  put  forward  that  this  guarantee 
was  in  any  wise  applicable  to  municipal  corporations.1  Such  con- 
tention was,  as  might  have  been  expected,  summarily  denied.  Had 
the  court  ruled  otherwise,  the  whole  complex  subject  of  the  reason- 
ableness of  classifying  cities  for  purposes  of  legislation  would 
apparently  have  become  a  federal  question,  and  the  clauses  by 
which,  as  we  shall  see,2  the  guarantee  of  general  legislation  for 
cities  was  introduced  in  many  state  constitutions  would  have  been 
wholly  unnecessary.  It  is  perhaps  superfluous  to  remark  that  no 
such  situation  developed. 

1  Williams  ».  Eggleston,  170  U.  S.  304  (1897) ;  Mason  v.  Missouri,  179  U.  S.  328 
(1909). 
8  Ch.  III. 


28      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

On  the  whole,  then,  since  under  the  adjudications  of  the  courts 
the  municipal  corporation  has  enjoyed  practically  no  protection 
under  the  contract  clause,  has  found  security  of  only  a  very  limited 
character  under  the  guarantee  of  due  process  of  law,  and  has  been 
wholly  unable  to  invoke  the  guarantee  of  the  equal  protection  of  the 
laws,  it  is  manifest  that  if  the  city  desired  successfully  to  combat 
the  whole  miserable  practice  of  legislative  ''interference"  in  its 
affairs,  it  could  not  rely  solely  upon  the  fact  that,  being  a  corpora- 
tion, it  was  a  legal  person.  The  rights  and  immunities  extended 
generally  to  persons  by  our  constitutions  have  not  been  applied  to 
cities  in  sufficient  measure  to  meet  and  to  solve  with  satisfaction 
the  difficult  problem  of  relations  between  the  city  and  the  state  of 
which  it  is  a  part. 


CHAPTER  II 

CONSTITUTIONAL  LIMITATIONS  DIRECTED    AT 
SPECIFIC  LEGISLATIVE  ABUSES 

THE  fact  has  been  noted  that  the  revolutionary  constitutions  of 
New  York  (1777),  Pennsylvania  (1776),  and  Maryland  (1776) 
made  specific  reference  to  municipal  corporations,  but  that  the 
provisions  in  question  did  not  in  any  sense  guarantee  to  cities  im- 
munity from  legislative  control.  It  is  interesting  to  observe,  how- 
ever, how  in  the  evolution  of  the  state  constitutions  that  followed 
these  early  instruments  of  government,  provisions  came  to  be  in- 
serted which  by  expression  or  implication  erected  certain  barriers 
to  absolute  legislative  control  over  municipal  affairs.  It  seems 
scarcely  open  to  question  that  some  of  these  provisions,  which  were 
later  construed  by  the  courts  to  have  created  this  or  that  legal  right 
for  cities,  were  incorporated  into  state  constitutions  largely  by  in- 
advertence —  that  is,  with  little  if  any  conscious  design  to  outlaw 
a  specific  legislative  abuse.  Moreover,  there  were  unquestionably 
some  instances  in  which  constitutional  conventions  acted  more  or 
less  blindly  in  taking  over  certain  provisions  relating  to  cities  from 
the  constitutions  of  other  states  —  provisions  in  respect  to  the 
origin  of  which  they  probably  knew  very  little  indeed.  On  the 
other  hand,  it  is  a  matter  of  no  difficulty  whatever  to  locate  the 
precise  legislative  abuse  that  was  aimed  at  by  many  of  these  pro- 
visions and  to  find  their  origin  in  the  book  of  bitter  experience. 

Clauses  guaranteeing  the  Right  of  Local  Selection  of  City  Officers 

The  Louisiana  constitution  of  1812  contained  what  was  perhaps 
the  first  definite  guarantee  of  a  home  rule  right  that  was  ever  incor- 

29 


30       DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

porated  into  an  American  constitution.  It  declared  l  that  "the 
citizens  of  the  town  of  New  Orleans  shall  have  the  right  of  appoint- 
ing the  several  public  officers  necessary  for  the  administration  and 
the  police  of  the  said  city ;  pursuant  to  the  mode  of  election  which 
shall  be  prescribed  by  the  legislature."  Here  then  was  an  explicit 
guarantee  to  one  city  of  the  right  of  local  selection  of  municipal 
officers  —  a  specific  right  which  at  a  later  period  of  our  history 
many  a  city  of  the  country  would  have  been  glad  to  possess.  The 
origin  of  this  provision  is  not  far  to  seek.  The  New  Orleans  char- 
ter of  1805,  issued  by  the  territorial  legislature,  had  like  many  other 
charters  of  the  period  provided  for  the  appointment  of  the  mayor 
of  the  city  by  the  governor.  It  was  manifestly  the  purpose  of  the 
convention  that  framed  the  constitution  to  abolish  this  system ; 
and  in  doing  so  they  extended  the  right  of  local  choice  to  cover  all 
municipal  officers.  It  is  improbable  that  the  small  city  of  New  Or- 
leans had  actually  suffered  from  the  fact  that  its  mayor  had  been 
appointed  by  the  governor  of  the  territory.  The  provision  may  per- 
haps be  taken  rather  as  a  single  concrete  instance  in  which  expres- 
sion was  given  to  a  popular  belief  that  was  being  asserted  at  that 
time  —  the  belief,  namely,  that  the  system  of  central  appointment 
of  county  and  city  officers  should  be  abandoned  in  favor  of  the 
more  democratic  system  of  local  selection. 

This  provision  of  the  first  constitution  of  Louisiana  was  repeated 
in  the  successive  constitutions  of  the  state  2  down  to  the  reconstruc- 
tion constitution  of  1868,  when  it  was  omitted.  It  is  of  interest  to 
note  that  almost  immediately  thereafter  the  legislature  of  the  state 
began  to  gather  into  its  own  hands  control  over  the  administrative 
departments  not  only  of  the  city  of  New  Orleans  but  of  other  local 
governments  as  well 3  —  a  practice  which  was  brought  to  an  end  by 

i  Art.  VI,  sec.  23. 

1  Const,  of  1845,  Title  VI,  art.  128 ;  of  1852,  Title  VI,  art.  124 ;  of  1864,  Title 
VIII,  art.  133.  In  the  constitution  of  1864,  however,  an  important  exception  was 
made  in  that  police  commissioners  were  required  to  be  appointed  by  the  governor. 

3  Referring  to  the  establishment  of  centralized  control  over  the  schools  of  New 
Orleans  by  legislative  enactments  of  1870  and  1873,  Judge  Poche  said  in  Labatt  v. 
New  Orleans,  38  La.  Ann.  283  (1886) :  "The  most  striking  feature  of  that  legisla- 
tion, a  feature  which  distinctly  characterized  the  legislation  of  that  disastrous  period 
of  Louisiana's  history,  was  to  strip  the  city  of  New  Orleans  and  the  parishes  of  the 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     31 

the  reintroduction  of  the  clause  in  question  into  the  constitution  of 
1879,  at  which  time  it's  guarantee  was  extended  to  all  the  cities  of 
the  state. 

New  York  began  its  history  as  a  state  with  the  system  of  central 
appointment  of  the  mayors  of  cities  firmly  fixed  by  colonial  practice. 
This  system  was  perpetuated  by  the  constitution  of  1777  save  that 
the  legislature  was  expressly  authorized  to  alter  it.1  This  the  legis- 
lature steadily  declined  to  do,  for  it  was  by  no  means  indifferent 
to  the  far-reaching  political  significance  of  the  enormous  patronage 
in  local  offices  which  under  the  scheme  of  centralization  lay  in  the 
hands  of  the  governor  and  the  council  of  appointment.  One  of 
the  prime  motives  for  calling  the  constitutional  convention  of  1821 
was  that  it  might  abolish  the  council  of  appointment  and  with  it 
the  centralized  system  of  control  which  functioned  through  it. 
So  far,  however,  as  cities  proper  were  concerned  the  New  York 
constitution  of  1821  did  not  go  as  far  as  did  the  Louisiana  consti- 
tution of  1812  in  creating  a  legal  right  of  local  selection  of  all  officers 
for  New  Orleans.  In  practice  all  municipal  officers  in  New  York 
except  the  mayor  were  already  subject  to  local  election  or  appoint- 
ment.2 The  convention  struck  directly  at  this  one  element  of 
centralization  when  it  wrote  into  the  constitution  that  "the  mayors 
of  all  cities  in  the  state  shall  be  appointed  annually  by  the  common 
councils  of  the  respective  cities." 3  That  it  did  not  declare  emphat- 
ically for  the  principle  of  local  selection  of  all  local  officers  shows  al- 
most conclusively  that  it  was  engaged  merely  in  reforming  an  exist- 
ing system  rather  than  in  the  task  of  imposing  limitations  upon  the 
legislature  with  a  view  to  freeing  the  city  from  legislative  domina- 
tion in  its  affairs. 

In  1833  this  provision  of  the  constitution  relating  to  the  selection 
of  mayors  was  amended  so  as  to  require  that  the  mayor  of  New 

state  of  all  power  of  effective  management  and  control  of  the  public  schools  and  of 
other  local  affairs  within  their  respective  corporate  limits,  and  to  concentrate  all 
powers  connected  therewith  in  the  state  authorities." 

1  Supra,  3. 

J  The  recorder  was  also  subject  to  central  appointment,  but  this  officer  being 
wholly  a  judicial  officer  may  be  omitted  from  consideration  here. 

8  Art.  IV,  sec.  10. 


32       DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

York  City  should  be  elected  by  direct  vote  of  the  people.  Six  years 
later  the  legislature  was  by  another  amendment  permitted  but  not 
required  to  provide  a  similar  mode  of  selecting  the  mayor  in  the 
other  cities  of  the  state.  Here  again  there  was  small  evidence  of 
any  effort  to  tie  the  hands  of  the  legislature.  The  application  of  the 
principle  of  direct  election  to  the  office  of  mayor  had  been  steadily 
growing  in  favor  throughout  the  country;  and  the  amendments 
of  1833  and  1839  in  New  York  were  unquestionably  due  to  the  fact 
that  the  convention  of  1821  had,  in  the  course  of  abolishing  a  cen- 
tralized system  of  administration,  made  the  mistake  of  providing 
a  single  specific  mode  by  which  the  mayor  might  be  chosen. 

In  seeking  an  explanation  for  the  clause  upon  this  subject  which 
found  expression  in  the  third  constitution  of  New  York,  that  of 
1846,  reference  must  be  made  to  another  clause  that  was  incorpo- 
rated in  the  constitution  of  1821.  After  providing  expressly  for  the 
local  election  or  appointment  of  the  more  important  county  officers, 
who  had  formerly  been  subject  to  appointment  by  the  governor  and 
council,  and  after  providing  for  the  selection  of  mayors  in  the  man- 
ner indicated,  the  constitution  of  1821  declared  generally  that  "all 
officers  heretofore  elected  by  the  people  shall  continue  to  be  elected ; 
and  all  other  officers  whose  appointment  is  not  provided  for  by 
this  constitution,  and  all  officers  whose  offices  may  be  hereafter 
created  by  law,  shall  be  elected  by  the  people,  or  appointed,  as  may 
by  law  be  directed."  1  It  may  be  said  in  passing  that  this  provi- 
sion was  apparently  entirely  superfluous.  If  the  "  all  officers  here- 
tofore elected"  referred  to  officers  of  the  state  government,  it  may 
be  remarked  that  there  were  comparatively  few  such  officers  who 
had  been  subject  to  election,  and  that  the  new  constitution  made 
specific  provision  in  respect  to  these.  If  the  phrase  referred  to 
local  officers,  it  may  be  remarked  that  no  officers  had  been  "hereto- 
fore elected"  in  cities  except  members  of  common  councils,  and  that 
practically  no  officers  had  been  elected  in  counties.  As  to  the  sec- 
ond declaration  contained  in  the  provision,  which  apparently  pur- 
ported to  confer  upon  the  legislature  express  power  to  determine 
the  manner  in  which  a  choice  might  be  made  of  officers  for  whose 

1  Art.  IV,  sec.  15. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES      33 

election  or  appointment  no  provision  was  made  in  the  constitu- 
tion, it  is  sufficient  to  note  that  the  legislature,  in  the  absence  of 
constitutional  limitation,  would  obviously  have  enjoyed  this 
power  without  any  express  grant  of  authority.  The  clause  was 
doubtless  inserted  in  the  constitution  out  of  abundant  caution, 
in  view  of  the  fact  that  the  convention  was  completely  over- 
turning the  established  system  of  the  state  under  which  numerous 
official  relationships  had  been  created. 

The  convention  of  1846,  then,  when  it  came  to  examine  the  pro- 
visions of  the  existing  constitution  relating  to  the  choice  of  officers, 
found  the  twice  amended  provision  concerning  the  selection  of 
mayors  and  this  provision  relating  generally  to  the  choice  of  officers 
"heretofore  elected"  and  "hereafter  created"  —  a  provision  so 
inconsequential  and  unnecessary  in  character  that  it  had  not  once 
in  the  quarter  century  of  its  existence  been  the  subject  of  judicial 
construction.  What  was  more  natural  than  that  they  should  have 
hit  upon  the  plan  of  amalgamating  these  provisions  into  a  single 
section  dealing  generally  with  the  choice  of  officers  ?  This  section l 
read  as  follows : 

All  county  officers  whose  election  or  appointment  is  not  provided  for  by 
this  constitution,  shall  be  elected  by  the  electors  of  the  respective  counties  or 
appointed  by  the  boards  of  supervisors,  or  other  county  authorities,  as  the 
legislature  shall  direct.  All  city,  town,  and  village  officers,  whose  election 
or  appointment  is  not  provided  for  by  this  constitution,  shall  be  elected 
by  the  electors  of  such  cities,  towns,  and  villages,  or  of  some  division 
thereof,  or  appointed  by  such  authorities  thereof,  as  the  legislature  shall 
designate  for  that  purpose.  All  other  officers  whose  election  or  appoint- 
ment is  not  provided  for  by  this  constitution,  and  all  officers  whose  offices 
may  hereafter  be  created  by  law,  shall  be  elected  by  the  people,  or  ap- 
pointed, as  the  legislature  may  direct. 

It  is  easy  to  read  into  this  provision  of  the  New  York  consti- 
tution of  1846  an  intention  on  the  part  of  the  framers  of  that  in- 
strument to  reform  some  legislative  abuse  by  creating  a  definite 
though  limited  constitutional  right  of  home  rule.  It  is  highly 
improbable  that  any  such  intention  existed.  The  principle  of  local 
selection  of  local  officers  was  at  that  time  solidly  established  in 

1  Art.  X,  sec.  2. 


34      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

practice.  There  had  been  no  indication  that  the  legislature  con- 
templated an  abandonment  of  this  practice.  The  probable  truth 
of  the  matter  is  that  the  convention  of  1846,  without  much  con- 
scious thought  of  guaranteeing  a  specific  right  to  cities,  rephrased 
the  provisions  of  the  constitution  about  to  be  superseded  so  as  to 
bring  them  into  conformity  with  the  actually  existing  facts  of  munic- 
ipal government  in  the  state  —  facts  which,  except  as  applied  to 
the  office  of  mayor,  the  legislature  had  voluntarily  created  without 
any  constitutional  mandate  whatever.  It  is  certainly  significant 
that  when  the  courts  were  called  upon  to  construe  and  apply  this 
clause  of  the  constitution  not  a  single  expression  could  be  instanced 
from  the  records  of  the  convention  which  indicated  a  deliberate- 
ness  of  purpose  on  the  part  of  that  body  to  create  a  definite  legal 
right  for  municipal  corporations.1 

Obviously,  however,  no  matter  how  inadvertent  its  origin  may 
have  been,  the  clause  in  question  did  in  fact  create  a  very  definite 
legal  right  —  the  right  of  local  selection  of  city  officers.  It  was 
introduced,  moreover,  not  long  before  the  period  at  which  the  ripen- 
ing opportunities  that  lay  in  municipal  spoils  began  to  dazzle  the 
eyes  of  state  legislatures  under  the  promptings  of  astute  political 
buccaneers.  It  is  not  surprising,  therefore,  that  the  legislature  of 
New  York,  when  it  began  to  make  vigorous  assault  upon  municipal 
treasuries,  and  especially  upon  the  treasury  of  the  largest  city  of 
the  state,  found  itself  confronted  with  a  formidable  fortification 
in  the  shape  of  this  apparently  harmless  provision  of  the  funda- 
mental law  of  the  state.  For  it  was  manifest  that  the  coffers  of 
cities  could  be  flung  wide  with  far  greater  ease  if  their  affairs  could 
be  put  in  the  hands  of  officers  controlled  by  the  legislature  instead 
of  remaining  in  the  hands  of  officials  locally  chosen. 

1  People  ex  rel.  Wood  v.  Draper,  15  N.  Y.  532  (1857).  Brown,  J.,  who  dissented 
in  the  case,  declared :  "I  am  quite  sure  that  there  is  not  a  single  line  or  expression 
in  that  record  which  favors  the  intention  implicated  to  them.  Neither  in  the  de- 
bates nor  in  the  organic  instrument  which  they  framed,  is  there  the  slightest  mani- 
festation of  a  design  to  leave  the  legislature  in  possession  of  a  power  which  might 
be  wielded  to  the  prejudice,  far  less  to  the  destruction,  of  the  rights  and  privileges 
reserved  to  the  local  communities."  It  is  to  be  noted,  however,  that  the  learned 
judge  was  able  to  cite,  as  indicative  of  the  convention's  intention,  only  the  evidence 
of  silence  in  the  record. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     35 

In  construing  the  term  "city  officers"  as  used  in  this  provi- 
sion of  the  constitution  it  would  have  been  quite  possible  for  the 
courts  to  introduce  the  distinction  between  those  officers  who  per- 
form functions  of  local  or  city  concern  and  those  who,  though  com- 
monly subject  to  local  selection,  are  nevertheless  regarded  as  state 
officers  by  reason  of  the  nature  of  their  functions.  By  the  intro- 
duction of  this  distinction  the  actual  scope  of  the  right  conferred 
upon  cities  could  have  been  greatly  restricted.  It  is  a  fact,  how- 
ever, that  this  distinction  has  found  little  or  no  place  in  the  recorded 
decisions  involving  an  interpretation  of  this  provision.  By  ex- 
pression or  implication  the  term  "city  officers"  has  been  broadly 
construed  to  include  not  only  such  officers  as  police,  health,  tax, 
excise,  and  election  officers,  but  also  clerks  of  local  courts,  commis- 
sioners of  jurors,  and  registers  of  conveyances.  Any  one  of  these 
officers  might,  not  without  reason,  have  been  held  to  be  not  a  city 
officer  as  such  but  from  the  viewpoint  of  his  functions  a  state 
officer. 

In  spite  of  the  liberality  of  construction  which  refused  to  apply 
this  well-known  though  somewhat  uncertain  distinction,  the  New 
York  legislature  was,  with  judicial  sanction,  able  to  find  escape 
from  the  rigor  of  the  rule  of  local  selection  of  officers  which  was 
apparently  prescribed  by  the  constitution  of  1846,  and  which  was 
continued  without  alteration  in  the  constitution  of  1894.1  Evasion 
of  the  requirement  was  accomplished  in  three  different  ways. 

In  the  first  place,  in  the  years  following  1846  numerous  laws  were  \ 
enacted  which  created  special  commissions  endowed  with  power  to 
construct  municipal  bridges  and  buildings  and  to  locate,  lay  out, 
and  embellish  highways,  boulevards,  parks  and  public  grounds. 
For  the  most  part  these  commissions  were  named  by  the  legislature 
itself.  Acts  of  this  character  went  for  many  years  unchallenged. 
When  finally  certain  of  them  were  brought  before  the  courts  they 
were  sustained  upon  the  ground  that  the  constitutional  provision 
in  question  did  not  prohibit  the  central  appointment  of. officers 
who  were  to  perform  temporary  functions  within  a  city  but  only  of 
officers  "intrusted  with  the  performance  of  permanent  functions  of 

1  Art.  X,  sec.  2. 


36      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

the  city  government."  l  Thus  was  one  important  avenue  of  legis- 
lative encroachment  upon  cities  kept  open  and  a  serious  legislative 
abuse  permitted  by  what  appears  to  have  been  a  highly  strained 
construction  of  the  constitutional  guarantee  of  the  right  of  local 
selection  of  local  officers. 

In  the  second  place,  it  is  to  be  noted  that  while  the  provision  in 
question  required  the  local  selection  of  all  county,  city,  town  and 
village  officers,  it  also  placed  in  the  discretion  of  the  legislature 
the  mode  of  selection  of  "all  officers  whose  offices  may  hereafter 
be  created  by  law."  These  subsequently  created  offices  were 
early  construed  to  include  local  offices  as  well  as  offices  of  the 
central  government.  In  the  year  1857  the  state  legislature  de- 
vised a  simple  but  truly  ingenious  scheme  for  effectuating  a  system 
of  central  control  over  local  officers.  This  scheme  was  to  abolish 
,  an  existing  "city  office"  as  such,  create  a  geographical  district 
larger  than  the  city,  provide  for  the  central  -appointment  of  the 
officers  of  this  district,  and  empower  them  to  carry  on  the  functions 
formerly  performed  by  city  officers.  Would  not  the  officers  of 
such  a  district  be  "officers  whose  offices"  were  "created  by  law" 
after  the  adoption  of  the  constitution  of  1846  ? 

Such  was  the  scheme  that  was  employed  for  the  first  time  in  the 
act  establishing  the  Metropolitan  Police  District  over  a  territory 
somewhat  similar  to  that  which  was  forty  years  later  included  in  the 
city  of  Greater  New  York.2  This  act  was  sustained,  by  the  line  of 
reasoning  just  indicated,  in  the  famous  case  of  People  ex  rel.  Wood 
v.  Draper.3  Emboldened  by  the  success  of  this  patent  subterfuge, 
the  legislature  subsequently  took  similar  control  of  the  police  of 
Albany,  creating  a  district  that  included  Albany,  West  Troy,  and 
the  village  of  Cohoes.  To  this  district  the  city  of  Troy  was  later 

»  GreatontJ.  Griffin,  4  Abb.  Pr.  (New  Ser.)  (N.  Y.)  310  (1868)  ;  Hanlon  v.  Super- 
visors of  Westchester,  57  Barb.  (N.  Y.)  383  (1870) ;  People  ex  rel.  McLean  v. 
Flagg,  46  N.  Y.  401  (1871) ;  People  ex  rel.  Kilmer  v.  McDonald,  69  N.  Y. 
362  (1877) ;  People  ex  rel.  Commissioners  v.  Supervisors  of  Oneida  County,  170 
N.  Y.  105.  (1902).  See  also  Mayor  etc.  of  New  York  v.  The  Tenth  National  Bank, 
111  N.  Y.  446  (1888),  where,  however,  the  point  here  noted  was  not  expressly  made. 

2  The  only  substantial  difference  was  that  Westchester  county  was  included  in 
the  police  district  while  no  part  of  Queens  was  so  included. 

s  15  N.  Y.  532  (1857). 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     37 

added,  as  was  also  the  city  of  Schenectady,  the  New  York  Central 
railroad  tracks  between  Albany  and  Schenectady  being  used  as  a 
ridiculous  link  to  furnish  territorial  contiguity  for  this  Capital 
Police  District.1  So  also  were  two  adjacent  towns  of  negligible 
importance  united  with  the  city  of  Buffalo  to  form  the  Niagara 
Frontier  Police  District.  In  only  a  single  instance  was  a  law  of 
this  character  held  void.  The  court  could  not  bring  itself  to  sus- 
tain an  act  which,  in  order  to  secure  central  control  over  the  police 
department  of  Troy,  established  the  Rensselaer  Police  District 
over  a  territory  that  was  almost  though  not  quite  identical  with 
that  of  the  city  itself.2 

Nor  was  this  specious  means  of  circumventing  the  constitutional 
requirement  of  local  selection  of  local  officers  confined  to  police 
departments.  Other  departments  which  held  an  alluring  patron- 
age or  other  political  significance  were  likewise  taken  over.  Thus 
the  various  health  services  of  the  city  of  New  York  were  placed  in 
charge  of  a  centrally  appointed  board  with  jurisdiction  over  the 
Metropolitan  Sanitary  District,  territorially  identical  with  the 
police  district.3  Within  a  few  years  after  its  establishment  this 
same  board  was  also  constituted  a  Metropolitan  Board  of  Excise 
with  somewhat  smaller  territorial  jurisdiction.4  So  also  at  a  much 

1  Sustained  in  People  ex  rel.  McMullen  v.  Shepard,  36  N.Y.  285.     1867. 

2  People  ex  rel.  Bolton  v.  Albertson,  55  N.  Y.  50  (1873).     See  also  People  ex 
rel.  Townsend  v.  Porter,  90  N.  Y.  68  (1882),  where,  however,  a  wholly  different 
question  was  involved. 

3  Sustained  in  Metropolitan  Board  of  Health  v.  Heister,  37  N.  Y.  661  (1868), 
upon  the  doctrine  of  the  Draper  case.     No  mention  was  made  of  the  early  case  of 
In  the  Matter  of  Whiting,  2  Barb.  (N.  Y.)  513  (1848),  in  which  a  lower  court, 
holding  that  the  health  officer  of  the  port  of  New  York  was  not  a  "city  officer," 
had  sustained  a  provision  of  the  law  empowering  the  governor  and  the  senate  to 
fill  a  vacancy  in  that  office.     It  is  highly  improbable  that  this  provision  of  the  law 
represented  an  overt  act  of  aggression  by  the  legislature  or  a  conscious  attempt  to 
circumvent  the  constitutional  requirement. 

4  Westchester  county  was  excluded.     Sustained  in  Metropolitan  Board  of  Ex- 
cise v.  Barrie,  34  N.  Y.  657  (1866),  but  the  constitutional  guarantee  of  local  selec- 
tion of  local  officers  was  apparently  not  invoked.     However,  as  bearing  upon  the 
question  whether  excise  officers  are  "city  officers"  see  People  ex  rel.  Haughton  v. 
Andrews,  104  N.  Y.  570  (1887),  where  the  statutory  phrase  "all  appointments  to 
office  in  the  city  of  New  York"  was  construed  to  include  commissioners  of  excise. 
While  these  officers,  said  the  court,  "may  be  in  one  sense,  and  that  a  technical  one, 


38   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

later  date  —  indeed,  long  after  the  statutes  creating  these  other 
districts  had  been  repealed,  as  most  of  them  were  in  1870  —  the 
courts  sustained  the  competence  of  the  legislature  to  create  a  Metro- 
politan Elections  District  over  territory  somewhat  larger  than  the 
city  of  New  York  and  to  place  such  district  in  charge  of  a  super- 
intendent of  elections  appointed  by  the  governor.1  These  are  the 
most  important  instances  in  which  statutes  of  this  kind  were 
contested  before  the  courts,2  although  it  is  probable  that  they  do 
not  constitute  the  entire  list  of  statutes  that  avoided  collision  with 
the  constitutional  guarantee  of  the  right  of  local  selection  of  local 
officers  by  the  artful  device  of  creating  a  new  civil  district. 

In  the  third  place,  the  legislature  of  New  York  was  under  judi- 
cial sanction  permitted  to  make  provision  for  the  appointment  by 
state  authority  of  any  officer  in  any  city  provided  the  functions  of 
that  officer  had  not  been  performed  in  that  particular  city  by  some 
local  officer  prior  to  1846.  In  other  words,  as  the  activities  of 
this  or  that  city  expanded  the  legislature  was  in  no  wise  compelled 
to  vest  control  over  new  municipal  services  in  locally  chosen  officers. 
Thus  an  act  of  1865  creating  the  Metropolitan  Fire  District,  with 
boundaries  similar  to  those  of  the  other  metropolitan  districts,  was 
sustained  not  upon  the  theory  that  the  commissioners'  offices  were 
thereafter  created,  the  district  being  new,  but  upon  the  view  that 
historically  the  officers  of  the  New  York  City  fire  department  were 

state  officers,  their  dependence  upon  the  city  and  the  municipal  government  is 
manifest,  and  we  see  no  reason  to  suppose  that  they  are  not  within  the  purview  of 
the  statute." 

1  Matter  of  Morgan  v.  Furey,  186  N.  Y.  202  (1906).     The  ground  on  which  this 
act  was  upheld  was  somewhat  different  from  that  of  the  other  cases  mentioned  in 
this  connection.     Infra,  40,  n.  2. 

2  A  somewhat  similar  rule  of  construction  was  applied  in  the  early  case  of  Litch- 
field  ».  McComber,  42  Barb.  (N.  Y.)  288  (1864),  to  sustain  an  act  which  vested  in 
the  Long  Island  Railroad  Co.  authority  to  appoint  a  collector  of  assessments  which 
were  levied  against  property  in  a  specially  created  district  in  Brooklyn,  which  as- 
sessments were  to  compensate  the  company  for  property  and  franchises  that  were 
appropriated  in  the  interest  of  the  public.     See  also  People  ex  rel.  Board  of  Edu- 
cation v.  Bennett,  54  Barb.  (N.  Y.)  480  (1867),  where  the  court  sustained  the 
competence  of  the  legislature  to  consolidate  several  school  districts  in  the  village 
of  Saratoga  Springs  and  to  name  the  members  of  the  board  of  education,  on  the 
ground  that  school  trustees  in  that  village  were  not  county,  city,  town,  or  village 
officers  but  "other  officers"  and  that  this  district  was  thereafter  created  by  law. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     39 

not  "public  or  civil  officers,"  being  officers  of  a  separate  corpora- 
tion which  was  not,  in  the  view  of  the  court,  "a  municipal  or  po- 
litical body."  l  Apparently  the  legislature  need  not  have  created 
the  larger  district ;  it  could  just  as  competently  have  provided  for 
the  appointment  by  the  governor  and  senate  of  fire  commissioners 
for  New  York  City  alone.  So  also  the  Commissioners  of  Central 
Park,  appointed  by  the  governor  and  senate,  could  be  empowered 
to  open  certain  streets  because  the  power  to  open  streets  in  this 
particular  section  of  the  city  had  never  been  specifically  conferred 
upon  the  common  council.2  Even  the  officers  of  the  Croton 
Aqueduct  Department  in  New  York  could  be  appointed  by  the 
legislature  itself,  for  prior  to  1846  this  department  had  not  been 
established  directly  by  law  but  only  by  ordinance  enacted  under 
express  sanction  of  law.3  The  commissioners  of  records  of  the  city 
and  county  of  New  York,  named  directly  by  the  legislature  in  an 
act  passed  in  1855,  were  new  officers,  their  functions  being  quite 
different  from  those  of  the  register  of  the  city  and  county.4  The 
commissioner  of  jurors,  being  a  county  officer  in  Kings,  could  not 
be  made  subject  to  appointment  by  the  appellate  division  of  the 
supreme  court ;  but,  contradictory  as  it  may  seem,  the  same  officer 
in  New  York  could  be  made  subject  to  such  mode  of  appointment.5 
The  members  of  a  board  of  examiners  to  pass  upon  building  cer- 
tificates could  be  appointed  by  certain  non-political  organizations 
in  New  York  because  this  function  had  not  previously  been  per- 
formed by  any  local  officer  and  the  members  of  this  board  were  not 
in  fact  officers  at  all.6  Commissioners  to  assess  "  special  franchises  " 
could  be  appointed  by  the  governor  because  this  species  of  property 

1  People  v.  Pinckney,  32  N.  Y.  377.     1865. 

s  In  the  Matter  of  the  Commissioners  of  Central  Park,  35  How.  Pr.  (N.  Y.)  255 
(1868)  ;  Astor  v.  Mayor  etc.  of  New  York,  62  N.  Y.  567  (1875). 

3  People  ex  rel.  Bradley  v.  Stevens,  51  How.  Pr.  (N.  Y.)  103  (1869).     It  appears, 
however,  that  this  attempted  appointment  by  the  legislature  never  became  effec- 
tive. 

4  People  ex  rel.  Kingsland  v.  Palmer,  52  N.  Y.  83.     1873. 

8  People  ex  rel.  Taylor  v.  Dunlap,  66  N.  Y.  162  (1876)  ;  Matter  of  Brenner, 
170  N.  Y.  185  (1902) ;  and  Matter  of  Allison  t>.  Welde,  172  N.  Y.  421  (1902). 
These  cases  are  difficult  to  reconcile. 

•  N.  Y.  Fire  Department  v.  Atlas  Steamship  Co.,  106  N.  Y.  566.     1887. 


40      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

had  never  been  assessed  before  by  any  authority,  either  central  or 
local,  and  the  fact  that  certain  tangible  property  that  had  formerly 
been  locally  assessed  was  subject  to  assessment  by  such  commission- 
ers was  of  no  material  consequence.1  So  also  might  the  governor 
be  empowered  to  appoint  a  superintendent  of  elections  whose  du- 
ties as  an  "investigator  of  registration"  had  " never  been  exercised 
before." 2  An  act  passed  in  1871  which  named  the  members  of 
a  board  of  water  commissioners  for  the  village  of  Dunkirk  and  gave 
them  apparently  a  life  tenure  was  not  proscribed  by  the  consti- 
tutional guarantee  in  question,  for  since  the  village  had  not  had  a 
water  works  before,  these  commissioners'  offices  were  created  by 
law  after  1846.3  So  likewise  might  the  legislature  name  certain 
persons  and  empower  them  to  audit  outstanding  " equitable" 
claims  against  the  city  of  Syracuse  because  the  power  thus  con- 
ferred "was  beyond  the  auditing  power  possessed  by  the  common 
council  in  1899,  or  at  the  time  of  the  adoption  of  the  constitution."  4 
In  the  light  of  the  facts  above  recited,  showing  the  extent  to 
which  the  legislature  of  New  York  was  permitted  by  the  courts 
to  dodge  in  three  distinct  ways  the  constitutional  requirement  that 
local  officers  should  be  locally  elected  or  appointed,  it  is  manifest 
that,  whatever  may  have  been  the  origin  and  purpose  of  this  clause 
of  the  constitution,  it  was  highly  ineffective  in  results.  The  city 
of  New  York  was  naturally  the  principal  sufferer.  On  the  floor  of 
the  constitutional  convention  of  1867-68  5  it  was  declared  that 
"  of  the  entire  amount  raised  for  the  annual  support  of  the  city  of 
New  York  more  than  three-fourths  —  seven  dollars  out  of  eight 
it  has  been  asserted  —  are  disbursed  by  those  who  hold  their  ap- 
pointments under  state  authorization  and  who  are  in  no  way  re- 
sponsible to  the  people  of  the  city,  if  indeed  they  are  responsible 
to  anybody,  for  the  amount  or  manner  of  their  expenditures." 
Certainly  there  is  no  state  of  the  Union  in  which  there  has  been  a 
larger  amount  of  legislative  "interference"  with  the  right  of  local 

1  People  ex  rel.  Met.  St.  Ry.  Co.  v.  Tax  Commissioners,  174  N.  Y.  417.     1903. 

2  Matter  of  Morgan  v.  Furey,  186  N.  Y.  202  (1906) ;  supra,  38,  n.  1. 

3  Hequembourg  v.  City  of  Dunkirk,  49  Hun  550.     1888. 

4  City  of  Syracuse  v.  Hubbard,  64  App.  Div.  (N.  Y.)  587.     1901. 

8  The  constitution  submitted  by  this  convention  was  defeated  at  the  polls. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     41 

selection  of  local  officers  than  in  New  York  —  and  this  in  spite  of 
an  apparently  significant  constitutional  guarantee  of  protection 
against  such  interference. 

It  must  not  be  thought,  however,  that  this  guarantee  has  been 
wholly  useless.  It  has  been  applied  by  the  courts  of  New  York 
to  defeat  a  considerable  number  of  statutes  "  interfering"  with  the 
right  of  cities  to  select  their  own  officers,  although  the  reasoning 
of  many  of  the  cases  upon  this  subject  appears  to  be  somewhat 
forced.1  Especially  has  this  clause  of  the  constitution  been  used  to 

1  Thus  it  was  early  held,  in  apparent  mitigation  of  the  decision  in  the  Draper 
case,  that  police  court  clerks  could  not  be  appointed  by  the  Metropolitan  Police 
Board ;  Devoy  v.  Mayor  etc.  of  New  York,  36  N.  Y.  449  (1867) ;  and  that  this 
board  could  not  be  empowered  to  exercise  practically  all  of  the  power  of  the  city 
to  enact  police  ordinances,  on  the  ground  that  while  legislative  power  could  be  dele- 
gated to  a  city,  this  being  the  only  universal  exception  to  the  rule,  it  could  not  be 
delegated  to  state  officers ;  People  v.  Acton,  48  Barb.  (N.  Y.)  524  (1867).  So  also 
the  commissioner  of  taxes  and  assessments  of  the  city  of  New  York  was  held  to  be 
a  city  officer  who  could  not  be  made  subject  to  appointment  by  the  governor  and 
senate ;  People  v.  Raymond,  37  N.  Y.  428  (1868).  In  another  early  case  —  People 
ex  rel.  Brown  v.  Blake,  49  Barb.  (N.  Y.)  9  (1867)  —  it  was  declared  that  the  legis- 
lature might  not  itself  name  the  first  trustees  of  a  newly  incorporated  village,  al- 
though why  the  offices  of  these  trustees  were  not  regarded  as  being  thereafter  created 
by  law  does  not  appear. 

About  three  decades  passed  before  the  courts  again  applied  this  constitutional 
guarantee  with  effect  to  protect  cities  against  legislative  interference.  In  this  later 
era  it  was  held,  by  a  greatly  overstrained  construction  of  the  provision  under  re- 
view, that  a  statute  requiring  the  election  of  a  bi-partisan  board  of  four  police 
commissioners  for  Albany,  under  a  restriction  that  no  member  of  the  council  could 
vote  for  more  than  two  commissioners,  was  void ;  this  did  not  amount  to  a  local 
election  or  appointment;  Rathbone  ».  Wirth,  150  N.  Y.  459  (1896).  So  it  was 
held,  by  an  equally  strained  construction,  that  the  civil  service  law  of  1899,  which 
required  that  the  appointing  officer  of  a  city  should  appoint  the  person  "graded 
highest"  on  the  competitive  list,  was  void  because  the  "local  authorities  designated 
by  the  legislature  [i.e.,  by  the  charter  of  Binghamton,  the  board  of  street  commis- 
sioners appointed  by  the  mayor]  are  absolutely  deprived  of  any  power  of  selection" 
and  thus  "the  real  power  of  appointment  is  transferred  from  the  authorities  in  which 
it  is  vested  by  the  constitution  to  the  civil  service  commissioners."  The  fact  that  the 
local  civil  service  commissioners  might,  in  certain  circumstances  not  involved  in 
this  case,  be  subject  to  central  appointment  was  adverted  to,  but  was  apparently 
not  controlling.  The  fact  that  the  local  civil  service  commissioners  were  themselves 
in  this  case  local  appointees  was  apparently  ignored.  There  was  no  intimation 
that  the  feature  of  the  statute  providing  for  the  removal  of  local  commissioners  and 
their  appointment  by  the  state  commission  was  the  offending  provision  of  the  law 
because  the  local  commissioners  were  "city  officers."  People  ex  rel.  Balcom  v. 


42   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

prevent  the  statutory  extension  of  the  terms  of  office  of  incumbent 
local  officers,  upon  the  theory  that  an  extension  of  term  by  the  leg- 
islature was  tantamount  to  a  legislative  appointment.  It  must 
be  said,  however,  that  the  pronouncements  of  the  courts  upon  this 
point  have  not  always  been  wholly  free  from  contradictions.1  On 
the  whole  it  seems  fair  to  conclude  that,  so  far  as  practical  results 
are  concerned,  the  clause  of  the  New  York  constitution  which  since 
1846  has  guaranteed  to  cities  the  right  to  elect  or  appoint  their  own 
officers  has  been  construed  out  of  the  way  of  the  legislature  far 
more  effectually  than  it  has  been  applied  as  a  barrier  to  legislative 
encroachment. 

In  the  Wisconsin  constitution  of  1848  the  provision  of  the  New 
York  constitution  on  this  subject  was  taken  over  without  verbal 

Mosher,  163  N.  Y.  32  (1900).  See  also,  as  bearing  upon  the  relation  between  the 
civil  service  statutes  and  the  requirement  of  local  selection  of  local  officers,  Rogers  v. 
Common  Council  of  Buffalo,  123  N.  Y.  173  (1890) ;  Pearce  v.  Stephens,  18  App. 
Div.  (N.  Y.)  101  (1897) ;  People  ex  rel.  Weintz  v.  Burch,  79  App.  Div.  (N.  Y.)  156 
(1903). 

By  still  another  stretch  of  the  provision  in  question  it  was  held  that  the  legislature 
could  not  provide  for  the  election  of  city  magistrates  in  Brooklyn  while  such  offi- 
cers in  the  rest  of  the  city  of  New  York  were  subject  to  appointment  by  the  mayor ; 
People  v.  Dooley,  171  N.  Y.  74  (1902).  In  what  appears  to  have  been  a  dictum,  for 
the  point  was  not  involved  in  the  case,  it  was  declared  that  the  legislature  could  not 
make  the  police  commissioner  of  New  York  subject  to  the  governor's  absolute 
power  of  removal ;  People  ex  rel.  Devery  v.  Coler,  173  N.  Y.  103  (1903).  An  act 
consolidating  the  board  of  sewer  and  water  commissioners  with  the  board  of  street 
commissioners  in  the  village  of  Saratoga  Springs  and  naming  the  first  members  of 
the  consolidated  board  was  held  void ;  Village  of  Saratoga  Springs  v.  Van  Norder, 
75  App.  Div.  (N.  Y.)  204  (1902) .  So  also  was  an  act  providing  for  the  filling  of  vacan- 
cies in  the  board  of  health  of  Oswego  by  the  county  judge  ;  People  ex  rel.  Bush  v. 
Houghton,  182  N.  Y.  301  (1905).  In  this  latter  case  no  reference  was  made  to  the 
early  case  of  In  the  Matter  of  Whiting,  2  Barb.  (N.  Y.)  513  (1848),  supra,  37,  n.  3. 

1  People  ex  rel.  McCune  v.  Metropolitan  Police  Board,  19  N.  Y.  188  (1859) ; 
People  ex  rel.  Loew  v.  Batchelor,  22  N.  Y.  128  (1860) ;  People  ex  rel.  Williamson 
v.  McKinney,  52  N.  Y.  374  (1873)  ;  People  ex  rel.  Lord  v.  Crooks,  53  N.  Y.  648 
(1873)  ;  People  ex  rel.  Leroy  v.  Foley,  148  N.  Y.  677  (1896) ;  In  the  Matter  of 
Burger,  21  Misc.  (N.  Y.)  370  (1897) ;  People  ex  rel.  Eldred  v.  Palmer,  154  N.  Y. 
133  (1897)  ;  Kelly  v.  Van  Wyck,  35  Misc.  (N.  Y.)  210  (1901)  ;  In  the  Matter  of 
Haase,  88  App.  Div.  (N.  Y.)  242  (1903)  ;  People  ex  rel.  White  v.  York,  35  App. 
Div.  (N.  Y.)  300  (1898)  ;  People  ex  rel.  Lahey  v.  Partridge,  74  App.  Div.  (N.  Y.) 
291  (1902)  ;  People  ex  rel.  Burns  v.  Partridge,  38  Misc.  697  (1902)  ;  Sugden  v. 
Partridge,  174  N.  Y.  87  (1903).  This  last  mentioned  case  was  not  in  line  with 
most  of  the  other  cases  here  cited. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     43 

alteration  of  any  kind ; l  and  the  Virginia  constitution  of  1850 
embodied  a  provision  that  was  very  nearly  identical  in  purport.2 
In  neither  state  does  there  appear  to  have  been  any  conscious 
attempt  to  interdict  an  existing  or  threatened  legislative  abuse  of* 
the  principle  of  local  self-government ;  for  in  both  states  the  custom 
of  local  selection  of  local  officers  was  firmly  set  in  the  laws.  The 
probability  is  that  in  each  instance  the  provision  in  question  was 
copied  from  the  constitution  of  New  York  without  any  profound 
contemplation  of  its  restrictive  significance.  Moreover,  the 
judicial  records  of  these  states  do  not  disclose  that  the  provision 
ever  had  any  important  history  in  application,  although  this  is 
not  to  declare  that  it  did  not  in  fact  operate  to  lay  a  restraining 
hand  upon  possible  legislative  action.3 

The  Michigan  constitution  of  1850  contained  a  clause  somewhat 
similar  to,  although  not  nearly  so  explicit  as,  that  of  the  New  York 
constitution  of  1846.  It  declared4  that  " judicial  officers  of  cities 
and  villages  shall  be  elected,  and  all  other  officers  shall  be  elected 
or  appointed  at  such  time  and  in  such  manner  as  the  legislature 
may  direct."  Fifteen  years  after  the  adoption  of  this  constitution 
the  supreme  court  of  Michigan  found  no  difficulty  in  sustaining, 
without  even  referring  to  this  clause,  an  act  of  the  legislature  which 
provided  a  state-appointed  police  commission  for  the  city  of  De- 
troit.5 But  a  few  years  later  in  the  famous  case  of  the  People  ex 

1  Art.  XIII,  sec.  9. 

2  Art.  VI,  sec.  34.     Repeated  verbatim  in  constitution  of  1864,  Art.  VI,  sec.  33. 

3  In  the  Virginia  constitution  of  1870  the  clause  of  the  New  York  constitution  of 
1846  was  copied  verbatim.     Art.  VI,  sec.  20.     In  the  same  article  it  was  ordained 
that  every  city  should  elect  certain  judges  and  court  officers,  a  commonwealth's  at-  . 
torney,  a  sergeant,  treasurer,  commissioner  of  revenue,  and  a  mayor.     The  latter's 
powers  and  duties  were  outlined  in  some  detail,  and  collateral  reference  was  also 
made  to  the  common  councils  of  cities.     This  enumeration  of  officials  is  doubtless 
accounted  for  in  part  by  the  fact  that  the  constitution  provided  in  detail  for  the 
scheme  of  county  government,  and  since  in  Virginia  the  county  has  little  if  any 
jurisdiction  over  a  city  which  it  includes,  it  was  necessary  also  to  provide  at  least 
for  certain  municipal  officers  corresponding  to  county  officers.     See  also  Amend- 
ment of  1876  adding  section  23  to  Art.  V,  and  see  the  elaborate  provisions  for  city 
government  in  the  constitution  of  1902,  Art.  VIII,  slightly  amended  in  1913. 

4  Art.  XV,  sec.  14. 

6  People  ex  rel.  Drake  v.  Mahaney,  13  Mich.-  481.     1865. 


44   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

rel.  LeRoy  v.  Hurlbut l  —  the  case  in  which  Judge  Cooley  indulged 
in  many  expressions  of  opinion  that  have  since  been  cited  as  sup- 
porting the  doctrine  of  an  inherent  right  of  local  self-government 2 
-  the  court  relied  upon  this  provision  of  the  constitution  in  de- 
claring the  incompetence  of  the  legislature  to  provide  a  state-ap- 
pointed board  of  public  works  for  the  same  city.  In  effect  the 
court  read  into  the  provision  certain  important  words  that  were 
found  in  the  New  York  clause  but  were  omitted  from  the  Michigan 
clause.  The  provision  in  question  was  construed  to  mean  that 
judicial  officers  of  cities  and  villages  should  be  locally  elected  and 
that  all  other  officers  of  such  corporations  should  be  locally  elected 
or  locally  appointed,  as  the  legislature  might  direct. 

Following  the  decision  of  the  Hurlbut  case  this  clause  of  the 
Michigan  constitution  was  successfully  invoked  in  a  series  of  cases 
to  defeat  legislative  assaults  upon  the  right  of  cities  to  have  their 
officers  locally  chosen.3  In  these  cases  the  difficult  distinction 
(which  was  never  raised  in  New  York  and  which  apparently  would 
not  have  received  judicial  support  if  it  had  been  raised)  was  drawn 
between  municipal  officers  whose  functions  are  primarily  of  inter- 
est to  the  state  and  those  officers  whose  functions  are  "  purely 
municipal"  or  local  in  character.  Thus  the  early  decision  uphold- 
ing the  authority  of  the  legislature  to  create  a  state-appointed 
police  commission  for  a  city  was  never  overruled,  although  the 
opinion  expressed  in  that  case  was  certainly  delimited  and  modi- 
fied. So  also  the  competence  of  the  legislature  to  establish  a  state- 
appointed  health  board  for  Detroit  was  sustained  upon  the  same 
theory.4 

In  the  Kentucky  constitution  of  1850  a  provision  very  similar 

1  24  Mich.  44.     1871. 

8  Supra,  13. 

3  People  v.  Lothrop,  24  Mich.  235  (1872) ;  People  v.  Common  Council  of  Detroit, 
28  Mich.  228  (1873),  involving  the  legality  of  a  state-appointed  park  commission; 
Peoples.  Mayor  of  Detroit,  29  Mich.  343  (1874),  involving  the  same  question; 
Moreland  v.  Millen,  126  Mich.  381  (1901),  holding  void  an  act  providing  for  the 
provisional  appointment  of  a  superintendent  of  public  works  for  Detroit ;  David- 
son v.  Hine,  151  Mich.  294  (1908),  invalidating  an  act  creating  a  state-appointed 
police  and  fire  commission  for  Bay  City. 

«  Davock  v.  Moore,  105  Mich.  120.     1895. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     45 

to  that  of  the  Michigan  constitution  was  introduced.1  But  the 
provision  does  not  appear  to  have  been  construed  into  an  effective 
guarantee  of  a  right  to  have  municipal  officers  locally  selected  in 
that  state. 

On  the  whole,  then,  it  may  be  said  that,  so  far  at  least  as  the 
books  disclose,  the  grant  to  cities  of  the  right  to  select  their  own 
local  officers  proved  to  be  a  partially  effective  guarantee  of  home 
rule  only  in  New  York  and  Michigan.  In  any  case  it  must  be  noted 
that  while  this  specific  "right"  may  be  regarded  as  of  fundamental 
importance,  it  is  a  " right"  which  under  legislative  practice  munic- 
ipal corporations  have  with  comparatively  few  exceptions  enjoyed 
very  widely  since  the  early  years  of  our  national  history.  Even 
with  the  possibility  eliminated  of  direct  appointment  of  munici- 
pal officers  by  state  rather  than  local  authority,  it  is  obvious  that 
almost  limitless  opportunity  remains  for  legislative  "interference" 
with  the  affairs  of  cities. 

Clauses  prohibiting    the  Appointment  of  Special    Commissions  in 
Control  of  Municipal  Affairs 

Somewhat  similar  in  purport  to  those  provisions  which  guaran- 
teed to  cities  the  right  of  local  selection  of  local  officers  were  cer- 
tain provisions  which,  although  first  incorporated  into  state  con- 
stitutions at  a  much  later  period,  are  nevertheless  because  of  their 
subject  matter  appropriately  mentioned  at  this  point. 

It  was  noted  above  that  the  provision  of  the  New  York  consti- 
tution of  1846  which  required  that  "city"  officers  should  be  locally 
elected  or  appointed  was  not  construed  by  the  courts  of  that  state 
to  prevent  the  legislature  from  providing  for  the  state  appointment 
of  special  commissions  of  a  temporary  character  with  power  to 
undertake  municipal  improvements.  In  the  decades  preceding 
and  following  the  opening  of  the  Civil  War  the  cities  of  Pennsyl- 
vania —  and  more  particularly  the  city  of  Philadelphia  —  suffered 
especially  under  the  tyranny  of  the  legislature  in  the  matter  of  such 
commissions  —  commissions  which  in  some  instances  were  endowed 

1  Art  VI,  sec.  6.  This  clause  did  not  specifically  require  local  election  and  made 
no  mention  whatever  of  appointments. 


46   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

with  legal  power  to  make  almost  limitless  drafts  upon  the  municipal 
treasury.  The  constitution  of  that  state  which  was  adopted  in 
1873  sought  to  tie  the  hands  of  the  legislature  in  this  regard  by  de- 
claring as  follows : 1 

The  general  assembly  shall  not  delegate  to  any  special  commission, 
private  corporation  or  association,  any  power  to  make,  supervise,  or 
interfere  with  any  municipal  improvement,  money,  property  or  effects 
whether  held  in  trust  or  otherwise,  or  to  levy  taxes  or  perform  any  mu- 
nicipal function  whatever. 

Two  years  after  this  provision  became  a  part  of  the  fundamental 
law  of  Pennsylvania  an  amendment  was  adopted  in  New  Jersey 
which  provided  that  the  legislature  should  pass  no  special  act 
"  appointing  local  officers  or  commissions  to  regulate  municipal 
affairs."  2  As  in  Pennsylvania,  the  grievance  of  the  cities  of  New 
Jersey  in  the  matter  of  such  commissions  was  founded  upon  bitter 
experience  through  many  years.3  The  Pennsylvania  provision 
on  this  subject  was  also  incorporated  practically  without  alteration 
in  the  constitutions  of  Colorado  4  in  1876,  of  California  5  in  1879, 
of  Montana6  and  Wyoming7  in  1889,  and  of  Utah8  in  1895.  In 
none  of  these  other  states,  however,  with  the  possible  exception  of 
California,  can  this  prohibition  be  said  to  have  originated  in  a 
genuine  experiential  need. 

It  is  entirely  probable  that  as  a  guarantee  of  a  specific  home 
rule  right  this  prohibition  upon  the  competence  of  the  legislature  to 
create  special  commissions  charged  with  the  performance  of  munic- 
ipal functions  might  in  certain  states  and  at  certain  periods  of  our 
history  have  proved  to  be  a  highly  beneficial  protection  to  cities. 
But  the  truth  of  the  matter  is  that  in  most  of  the  above-mentioned 
states  such  a  prohibition  was  incorporated  into  the  constitution  at 

1  Art.  Ill,  sec.  20. 

9  Amendment  of  1875  adding  section  7  to  Art.  IV  of  the  constitution  of  1844. 

«  See  in  Attorney  General  ex  rel.  Booth  v.  McGuinness,  78  N.  J.  L.  346  (1909),  a 
partial  list  of  acts  in  which  the  legislature  between  1845  and  1875  had  created  special 
municipal  commissions  the  members  of  which  were  neither  locally  appointed  nor 
locally  elected ;  pp.  358-366.  «  Art  V,  sec.  36. 

«  Art.  V,  sec.  35.  7  Art.  Ill,  sec.  37. 

«  Art.  XI,  sec.  13.  •  Art.  VI,  sec.  29. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     47 

a  somewhat  late  date  and  along  with  a  comprehensive  prohibition 
on  all  special  legislation  for  cities.1  Under  such  circumstances  it 
was  largely  if  not  wholly  superfluous.  In  Pennsylvania  the  only 
important  case  in  which  this  provision  has  been  construed  involved 
a  consideration  of  the  effect  of  the  provision  upon  a  previously 
constituted  commission.2  In  New  Jersey  its  protection  has  ap- 
parently been  invoked  in  no  case.  In  California,  although  referred 
to  or  discussed  in  a  number  of  cases,3  this  guarantee  of  immunity 
has  certainly  been  of  no  great  importance.4  In  Montana,  Wyo- 
ming, and  Utah  —  states  with  few  if  any  important  cities  —  it  ap- 
pears to  have  had  no  history  before  the  courts.  The  absence  from 
the  books  of  cases  in  which  a  constitutional  provision  has  been  in- 
voked is  not,  of  course,  conclusive  evidence  of  its  uselessness ;  but 
in  this  instance  it  seems  at  least  fairly  conclusive  when  taken  in 
conjunction  with  the  obvious  fact  that  a  general  prohibition  on  all 
special  legislation  for  cities  would  naturally  embrace  a  specific 
prohibition  on  the  establishment  of  special  municipal  commissions. 
Only  in  Colorado,  then,  may  this  prohibition  be  said  to  have  had 
an  interesting  judicial  history.  In  this  state  the  constitutional 
provisions  on  the  subject  of  special  legislation  for  cities  5  were  held 
not  to  prevent  the  legislature  from  amending  by  special  act  the 
charter  of  any  city  which  had  not  voluntarily  organized  under  a 
general  law.6  Such  a  city  was  Denver,  the  only  important  city  in 
the  state.  When  the  legislature  by  special  acts  transferred  a  large 

1  Infra,  Ch.  III.  '  Perkins  v.  Slack,  86  Pa.  St.  270.     1878. 

3  See  for  example  Board  of  Commissioners  v.  Board  of  Trustees  of  the  City  of 
Sacramento,  71  Cal.  310  (1886) ;  Boys'  and  Girls'  Aid  Society  u.  Reis,  71  Cal.  627 
(1887) ;    Pennie  v.  Reis,  80  Cal.  266  (1889) ;    Davies  t>.  The  City  of  Los  Angeles, 
86  Cal.  37  (1890) ;   Woodward  v.  Fruitvale  Sanitary  District,  99  Cal.  554  (1893) ; 
Yarnell  v.  City  of  Los  Angeles,  87  Cal.  603  (1891) ;    City  of  Los  Angeles  v.  Teed, 
112  Cal.  319  (1896) ;   Banaz  v.  Smith,  133  Cal.  102  (1901). 

4  Indeed  it  has  in  a  few  cases  been  held  to  be  a  restriction  upon  the  cities  of  Cali- 
fornia, which,  as  we  shall  see,  were  by  the  constitution  of  1879  vested  with  power 
to  frame  and  adopt  their  own  charters.     This  construction  was  based  upon  the  view 
that  what  the  legislature  might  not  do  the  city  exercising  charter-making  powers 
is  also  prohibited  from  doing. 

6  Art.  V,  sec.  25 ;   Art.  XIV,  sees.  13,  14 ;   Art.  XV,  sec.  2. 
•  Brown  v.  The  City  of  Denver,  7  Colo.  305  (1884) ;   Carpenter  v.  The  People. 
8  Colo.  116  (1884) ;   Darrow  v.  The  People,  8  Colo.  426  (1885). 


48       DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

part  of  the  functions  of  this  city  to  two  powerful  commissions  the 
members  of  which  were  appointed  by  the  governor,  the  supreme 
court  of  that  state  did  not  hesitate  to  declare  that  these  commis- 
sions, in  charge  of  "regular  departments"  of  the  city  government, 
were  not  included  in  the  " special  commissions"  which  the  legis- 
lature was  prohibited  from  establishing.1  Thus  was  a  provision 
which  might  unquestionably  have  been  construed  to  afford  the  city 
protection  against  such  encroachment  effectually  emasculated  at 
the  hands  of  the  court. 

On  the  whole,  it  can  scarcely  be  said  that  these  clauses  prohibit- 
ing special  municipal  commissions  have  played  a  very  important 
role  in  the  course  of  our  institutional  progress  toward  municipal 
home  rule. 

Clauses  relating  to  the  Financial  Powers  of  Cities 

In  the  Tennessee  constitution  of  1834  there  was  introduced  a 
provision  which  declared  that  "the  general  assembly  shall  have  the 
power  to  authorize  the  several  counties  and  incorporated  towns  in 
this  state  to  impose  taxes  for  county  and  corporate  purposes  re- 
spectively, in  such  manner  as  shall  be  prescribed  by  law ;  and  all 
property  shall  be  taxed  according  to  its  value,  upon  the  principle 
established  hi  regard  to  state  taxation."  2  In  the  phrasing  of  this 
clause  there  was  certainly  nothing  to  indicate  that  the  convention 
intended  it  to  be  in  the  nature  of  a  limitation  upon  legislative  ac- 
tion, except  perhaps  as  to  the  manner  in  which  the  power  of  taxa- 
tion might  be  exercised  by  municipal  corporations  under  legisla- 
tive sanction.  Nor  was  there  apparently  anything  in  the  history 
of  Tennessee  legislation  prior  to  the  constitution  of  1834  to  indi- 
cate the  necessity  of  such  limitation.  The  vesting  in  the  legislature 
of  competence  to  delegate  the  power  of  taxation  to  local  public  cor- 
porations was  manifestly  wholly  superfluous ;  for  the  competence  of 


1  In  re  Senate  Bill  Providing  for  a  Board  of  Public  Works  in  the  City  of  Denver, 
12  Colo.  188  (1888) ;    In  re  Fire  and  Excise  Commissioners,  19  Colo.  482  (1894). 
Reaffirmed  also  in  The  City  of  Denver  v.  Londoner,  33  Colo.  104  (1905)  and  The 
City  of  Denver  v.  Iliff,  38  Colo.  357  (1906). 

2  Art.  II,  sec.  29.     Repeated  in  the  constitution  of  1870 ;  Art.  II,  sec.  29. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     49 

the  legislature  in  this  regard  had  never  been  seriously  doubted  in 
Tennessee  or  in  any  other  state.  It  might  easily  be  argued,  how- 
ever, that  a  provision  of  this  kind  must  have  some  meaning.  It 
could  not  be  regarded  as  wholly  supererogatory.  Having  no  posi- 
tive significance,  it  had  to  be  construed  into  a  negation  of  power. 
And  so  it  was  construed  in  at  least  one  case,  although  it  was  not 
in  that  case  actually  applied  to  afford  protection  to  the  city.1 

In  the  Illinois  constitution  of  1848  a  clause  very  similar  to  that 
of  the  Tennessee  constitution  was  introduced.^  Again  it  does  not 
appear  what  the  origin  of  the  clause  may  have  been,  although  it 
was  probably  copied  from  the  Tennessee  provision  without  much 
thought  as  to  its  purport.  But  the  courts  of  Illinois,  beginning 
with  People  ex  rel.  McCagg  v.  Mayor  of  Chicago 3  decided  in 
1869,  construed  this  provision  in  such  a  manner  as  to  make  it  af- 
ford a  somewhat  effective  check  upon  legislative  interference  with 
municipal  corporations  in  certain  respects.4  In  effect  it  was  held 
that  the  legislature  under  this  express  authorization  to  delegate 
the  taxing  power  could  not  vest  the  "power  to  assess  and  collect 
the  taxes  for  corporate  purposes"  in  any  other  jjian  the  local  cor- 
porate  authorities  —  could  not,  for  example,  vest  such  power  in  a 
commission  or  board  appointed  by  the  state  itself.  It  was  also 
held  that  while  the  legislature  might  confer  such  power  it  could 
not  compel  a  municipal  corporation  to  impose  a  tax  for  a  corporate^ 
purpose.  On  the  other  hand,  the  question  seems  never  to  have 
arisen  in  Illinois  whether  under  the  apparent  grant,  thus  construed 
into  an  actual  negation  of  power,  the  legislature  could  confer  the 

1  Nicol  v.  The  Mayor  of  Nashville,  9  Humph.  (Tenn.)  252  (1848),  where  it  was 
declared  that  "the  legislature  most  clearly  has  no  power  to  delegate  to  a  county 
or  corporate  town  the  power  to  levy  taxes  for  any  other  than  county  or  corporate 
purposes ; "   but  in  the  opinion  of  the  court  the  levy  of  a  tax  for  the  purpose  of  pur- 
chasing railway  stock  —  which  was  the  issue  before  the  court  —  was  a  "corporate 
purpose." 

2  Art.  IX,  sec.  5. 

3  51  111.  17.     1869. 

4  Lovingston  v.  Wider,  53  111.  302  (1870)  ;    Wider  v.  East  St.  Louis,  55  111.  133 
(1870) ;    Marshall  v.  Silliman,  61  111.  218   (1871) ;    Wiley  v.  Silliman,  62  111.   170 
(1871) ;  Barnes  v.  Town  of  Lacon,  84  111.  461  (1877)  ;  Williams  v.  Town  of  Roberts, 
88  III.  11  (1878) ;   Gaddis  v.  Richland  Co.,  92  111.  119  (1879) ;   Cairo  etc.  Rd.  Co. 
».  Sparta,  77  111.  505  (1875). 


50   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

power  of  taxation  upon  a  municipal  corporation  for  other  than  a 
corporate  purpose. 

A  clause  similar  to  that  of  the  Tennessee  and  Illinois  constitu- 
tions was  incorporated  in  the  South  Carolina  constitution  of  1868 l 
and  in  the  West  Virginia  constitution  of  1872 ; 2  but  in  neither  of 
these  states  does  it  appear  to  have  been  inspired  by  the  desire  to 
restrict  legislative  action  or  to  have  had  any  important  history 
as  a  guarantee  of  municipal  immunity  from  legislative  encroach- 
ment. On  the  whole,  therefore,  the  conclusion  seems  inevitable 
that  even  in  Illinois,  the  only  state  in  which  such  a  clause  was  suc- 
cessfully invoked  in  behalf  of  municipal  home  rule,  the  protection 
which  the  courts  were  able  to  read  into  the  provision  was  a  protec- 
tion which  those  who  framed  it  little  dreamed  they  were  writing 
into  the  fundamental  law  of  the  state. 

In  the  Illinois  constitution  of  1870  the  provision  of  the  earlier 
constitution  upon  this  subject  was  rephrased  in  such  wise  as  to 
express  in  more  positive  terms  the  meaning  which  the  courts  ulti- 
mately read  into  the  provision  of  the  constitution  of  1848.  It  was 
expressly  declared 3  that  the  general  assembly  should  "  not  impose 
taxes  upon  municipal  corporations,  or  the  inhabitants  or  property 
thereof,  for  corporate  purposes,  but  shall  require  that  all  the  tax- 
able property  within  the  limits  of  municipal  corporations  shall  be 
taxed  for  the  payment  of  debts  contracted  under  authority  of  law." 
There  could  certainly  be  no  question  that  under  this  provision  the 
legislature  was  prohibited  from  compelling  cities  to  levy  taxes  for 
corporate  purposes. 

Somewhat  different  in  spirit  and  intent  was  the  provision  which 
was  incorporated  into  an  amendment  added  to  the  New  York 
constitution  in  1874.4  In  this  amendment  it  was  specifically 
declared  that  no  county,  city,  town,  or  village  should  be  "  allowed  to 
incur  any  indebtedness  except  for  county,  city,  town  or  village 
purposes."  Although  this  restriction  was  obviously  positive  in 

1  Art.  IX,  sec.  8.  2  Art.  X,  sec.  9.  »  Art.  IX,  sec.  10. 

*  Amendment  adding  sec.  11  to  Art.  VIII  of  the  constitution  of  1846.  This 
amendment  imposed  certain  other  restrictions  upon  the  legislature  in  the  matter 
of  municipal  finances.  See  infra,  58. 


LIMITATIONS  ON  SPECIFIC   LEGISLATIVE  ABUSES     51 

character,  it  was  never  applied  with  anything  like  the  rigidity  of 
construction  that  was  given  by  the  Illinois  courts  to  a  constitu- 
tional provision  of  far  less  emphatic  declaration.  For  example, 
the  New  York  courts  seem  never  to  have  been  called  upon  to  de- 
termine whether  the  word  " allow"  as  thus  used  implied  that  the 
legislature  might  not  under  any  circumstances  compel  a  municipal 
corporation  to  incur  a  debt  for  a  corporate  purpose.1  Certainly 
the  legislature  of  New  York  in  numerous  instances  subsequent  to 
the  adoption  of  this  amendment  did  impose  mandatory  expendi- 
tures upon  the  cities  of  the  state.  Indeed  the  only  important  cases 
in  which  it  was  contended  before  the  courts  that  this  provision  oper- 
ated to  guarantee  any  right  to  municipal  corporations  were  cases 
involving  the  authority  of  the  legislature  to  compel  or  authorize 
the  expenditure  of  municipal  funds  upon  an  undertaking  that  lay 
wholly  or  in  part  outside  the  corporate  jurisdiction.2  It  may  be 
said,  therefore,  that  the  provision  never  furnished  the  foundation 
upon  which  there  was  erected  in  that  state  any  home  rule  right  of  a 
substantial  character. 

Still  more  comprehensive  in  scope  and  emphatic  in  tone  was  the 
provision  on  this  same  subject  which  found  lodgment  in  the  Colo- 
rado constitution  of  1876.3  Here  it  was  declared  that  "the  general 
assembly  shall  not  impose  taxes  for  the  purposes  of  any  county, 
city,  town  or  other  municipal  corporation,  but  may,  by  law,  vest 
in  the  corporate  authorities  thereof  respectively  the  power  to  assess 
and  collect  taxes  for  all  purposes  of  such  corporation."  There 
could  be  no  mistaking  the  fact  that  the  convention  which  framed 
this  provision  clearly  intended  it  to  be  in  the  nature  of  a  positive 
restraint  upon  legislative  action.  But  this  clause,  as  we  shall  see, 
was  introduced  some  years  after  restrictions  of  various  kinds  upon 

1  The  nearest  approach  which  the  courts  made  to  a  consideration  of  this  question 
was  perhaps  in  the  case  of  In  the  Matter  of  the  Application  of  the  Mayor  etc.  of 
New  York,  99  N.  Y.  569  (1885),  where  it  was  held,  however  (p.  584),  that  no  deci- 
sion of  the  point  was  necessary  since  the  city  had  in  this  case  consented  to  the  incur- 
rence  of  the  debt. 

2  People  ex  rel.  Murphy  v.  Kelly,  76  N.  Y.  475  (1879)  ;  In  the  Matter  of  the  As- 
sessment of  Lands  in  the  Town  of  Flatbush,  60  N.  Y.  398  (1875) ;  In  the  Matter  of 
the  Application  of  the  Mayor  etc.  of  New  York,  99  N.  Y.  569  (1885). 

.'Art.  X,  sec.  7. 


52   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

legislative  action  in  relation  to  municipal  corporations  had  been 
introduced  into  many  constitutions.  Indeed,  by  1876  the  era  of 
v/  constitutional  prohibitions  upon  legislative  interference  with  mu- 
nicipal corporations  was  well  under  way.  The  provision  in  ques- 
tion appears  to  have  had  no  career  of  construction  in  the  Colorado 
courts. 

Practically  identical  in  phraseology  was  a  provision  incorporated 
in  the  California  constitution  of  1879. l  And  although  there  were 
introduced  into  the  same  constitution  a  number  of  other  highly 
important  restrictive  provisions  in  behalf  of  the  rights  of  cities,2 
the  courts  of  that  state  have  been  called  upon  to  apply  this  clause 
in  a  number  of  important  cases  affecting  the  constitutional  immu- 
nity of  cities  from  legislative  attack.  A  like  provision  in  the  Wash- 
ington constitution  of  1889, 3  which  also  included  other  important 
provisions  establishing  a  sphere  of  municipal  liberty,4  appears  to 
have  received  practically  no  construction  and  application  by  the 
courts  —  a  fact,  however,  which  does  not  necessarily  imply  that  it 
was  wholly  superfluous. 

Of  a  character  somewhat  different  from  the  foregoing  provisions 
was  a  clause  which  was  inserted  in  the  New  York  constitution  of 
1846.  This  clause  read  as  follows  : 5 

It  shall  be  the  duty  of  the  Legislature  to  provide  for  the  organization 
of  cities  and  incorporated  villages,  and  to  restrict  their  power  of  taxation, 
assessment,  borrowing  money,  contracting  debts  and  loaning  their  credit, 
so  as  to  prevent  abuses  in  assessments,  and  in  contracting  debt  by  such 
municipal  corporations. 

Obviously  this  provision  was  merely  directory  in  character.  It 
was  introduced  at  a  time  when  cities  were  everywhere  undertaking 
the  construction  of  public  works  upon  a  far  more  extended  scale 
than  formerly ;  and  it  is  probable  that  the  convention,  while  it 
hesitated  to  devise  a  scheme  of  positive  restriction,  nevertheless 
deemed  it  wise  to  sound  in  the  fundamental  law  of  the  state  a  note 
of  warning  to  the  legislature  as  to  its  moral  obligation  to  impose 
salutary  financial  restraints  upon  cities.  It  is  difficult  to  say 

1  Art.  XI.  sec.  12.  •  Art.  XI,  sec.  12.  «  Art.  VIII,  sec.  9. 

2  Infra,  Chs.  VII-XI.  « Infra,  Ch.  XII. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     53 

whether  this  clause  of  the  New  York  constitution  was  copied  into 
the  constitutions  of  certain  other  states  without  any  affirmative 
intent  whatever  —  as  in  some  instances  seems  likely  —  or  whether 
constitutional  conventions  in  other  states  were  inspired  by  the 
same  motives  that  probably  prompted  its  writing  in  New  York. 
However  that  may  be,  a  practically  identical  provision  was  incor- 
porated into  the  constitutions  of  Wisconsin  in  1848,1  California 
in  1849,2  Michigan  in  1850,3  Ohio  in  1851,4  Oregon  in  1857,5  Kansas 
in  1859,6  Nevada  in  1864,7  Alabama  in  1867,8  and  the  constitu- 
tions of  North  Carolina,9  South  Carolina,10  and  Arkansas  n  in  1868. 
Constitutional  provisions  of  a  directory  character  have  perhaps 
more  often  than  not  been  useless.  Legislatures  do  not  take  very 
seriously  the  occasional  efforts  of  conventions  to  set  up  elements 
in  a  moral  code  for  their  guidance.  It  is  enough  usually  if  they  keep 
within  the  numerous  positive  restrictions  of  the  fundamental  law. 
In  its  utter-  failure  to  accomplish  anything  of  substantiality  this 
provision  directing  the  legislature  to  circumscribe  the  financial 
powers  of  municipal  corporations  was  typical  of  directory  provi- 
sions generally.  It  was  soon  manifest  that  nothing  short  of  a  def- 
inite limitation  would  achieve  the  desired  result.  In  this  respect  the 
Iowa  constitution  of  1857  led  off  with  the  following  declaration : B 

No  county,  or  other  political  or  municipal  corporation,  shall  be  allowed 
to  become  indebted,  in  any  manner,  or  for  any  purpose,  to  an  amount, 
in  the  aggregate,  exceeding  five  per  centum  of  the  value  of  the  taxable 
property  within  such  county  or  corporation  —  to  be  ascertained  by  the 
last  state  and  county  tax  lists,  previous  to  the  incurring  of  such  indebted- 
ness. 

i  Art.  XI,  sec.  3.  '  Art.  IV,  sec.  37.  3  Art.  XV,  sec.  13. 

4  Art.  XIII,  sec.  6.     For  a  discussion  of  this  Ohio  clause  see  infra,  70. 

'Art.  XI,  sec.  5. 

6  Art.  XII,  sec.  5.     Provision  like  that  of  Ohio  ;  see  infra,  85. 

*  Art.  VIII,  sec.  8. 

8  Art.  XIII,  sec.  16.     In  this  constitution,  however,  a  positive  debt  limit  was 
also  fixed ;  see  infra,  54. 

9  Art.  VIII,  sec.  4. 

10  Art.  IX,  sec.  9. 

11  Art.  V,  sec.  49.     Provision  like  that  of  Ohio ;  see  infra,  88.     Also  a  positive 
debt  limit  was  fixed ;  see  infra,  54. 

12  Art.  XI,  see.  3. 


54   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

Thereafter  provisions  imposing  either  a  debt  limit,  a  tax  rate 
limit,  or  a  restriction  as  to  the  conditions  under  which  debts  might 
be  incurred,  were  incorporated  into  the  constitutions  of  Alabama  in 
1867,1  Arkansas  in  1868,2  Illinois  in  1870,3West  Virginia  in  1872,4 
Pennsylvania  in  1873,5  Wisconsin  6  and  Louisiana  7  in  1874,  Mis- 
souri in  1875,8  Texas,9  Colorado,10  and  North  Carolina  n  in  1876, 
Georgia 12  and  Maine 13  in  1877,  California  in  1879,14  Indiana  in 
1881,15  New  York  in  1884,16  Idaho,17  Montana,18  North  Dakota,19 
South  Dakota,20  Washington,21  and  Wyoming22  in  1889,  Kentucky 
in  1890,23  South  Carolina24  and  Utah  *  in  1895,  Virginia  in  1902,26 
and  Oklahoma  in  1907.27 

1  Art.  IV,  sec.  36.  Changed  from  debt  to  tax  rate  limit  in  constitution  of  1875, 
Art.  X,  sec.  7.  This  was  retained  in  constitution  of  1901,  Art.  XI,  sec.  216. 

I  Art  V,  sec.  47.     Changed  from  debt  to  tax  rate  limit  in  constitution  of  1874, 
Art.  XII,  sec.  4.     See  also  Art.  XVI,  sec.  1. 

»  Art.  IX,  sec.  12. 
<  Art.  X,  sec.  8. 
8  Art.  IX,  sec.  8. 

6  Amendment  to  Art.  XI,  sec.  3  of  constitution  of  1848. 

7  Amendment  adding  Art.  163  to  constitution  of  1868,  prohibiting  New  Orleans 
absolutely  from  increasing  her  debt  and  containing  other  elaborate  provisions  for 
the  liquidation  of  her  existing  debt.     See  also  constitution  of  1879,  Arts.  209,  254, 
and  amendment  of  1906,  Art;  281. 

«  Art.  X,  sees.  11,  12.     Amended  1900  and  1902. 
•  Art.  XI,  sees.  4,  5. 
10  Art.  XI,  sec.  8. 
"  Art.  VII,  sec.  7. 

II  Art.  VII,  sec.  7. 

13  Amendment  adding  Art.  XXII  to  constitution  of  1819. 

14  Art.  XI,  sec.  18. 

16  Amendment  substituting  a  new  section  for  Art.  XIII. 

16  Amendment  to  amendment  of  1874  which  added  sec.  11  to  Art.  VIII  of  con- 
stitution of  1846.     See  also  constitution  of  1894,  Art.  VIII,  sec.  10  as  amended  in  1905. 

17  Art.  XII,  sec.  4. 
"  Art.  XIII,  sec.  6. 
»  Art.  XII,  sec.  183. 

.»  Art.  XIII,  sec.  4.     Amended  in  1896  and  1902. 

»  Art.  VIII,  sec.  6. 

»  Art.  XVI,  sec.  5. 

13  Sec.  158. 

»<  Art.  VIII,  sec.  7. 

M  Art.  XIV,  sees.  3,  4. 

88  Art.  VIII,  sec.  127.  »  Art.  X,  sees.  26,  27. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES      55 

It  cannot  be  said  that  these  provisions  imposing  debt  and  tax 
limitations  were  projected  solely  for  the  purpose  of  securing  the  city 
in  a  right  against  legislative  domination.  To  a  considerable  extent 
they  were  aimed  at  abuses  committed  voluntarily  by  the  corporate 
authorities  where  the  legislature  had  given  nothing  but  its  sanction. 
In  this  aspect  such  provisions  were  in  the  nature  of  a  curtailment 
rather  than  an  extension  of  the  liberties  of  cities.  It  is  beyond 
question,  moreover,  that  in  practical  application  these  restrictions 
have  come  to  be  regarded  as  guarantees  to  the  taxpayers  of  a  de- 
gree of  immunity  against  municipal  extravagance  and  incapacity. 
On  the  other  hand,  it  must  be  remembered  that  many  of  the  debts 
of  municipal  corporations  were  incurred  at  the  direct  command  of 
the  legislature.  Viewed  in  the  light  of  the  usual  legislative  prac- 
tice in  this  respect,  these  constitutional  provisions  were  certainly 
in  the  nature  of  limitations  in  behalf  of  the  city.  The  probable 
truth  of  the  matter  is  that  they  were  directed  both  to  the  legisla- 
ture and  to  the  city,  with  the  taxpayer  chiefly  in  mind.  That 
cities  have  come  to  regard  them  as  restrictive  rather  than  protec- 
tive is  due  to  the  fact  that  within  the  debt  or  the  tax  limit  imposed 
the  power  of  the  legislature  over  municipal  finances  remained  unim- 
paired.1 As  bearing  upon  the  evolution  of  home  rule  rights  secured 
by  constitutional  guarantees  such  provisions  may  be  said  merely 
to  have  assisted  in  establishing  the  practice  of  dealing  with  the 
problem  of  the  city  through  the  medium  of  constitutional  provisions. 

Clauses  prohibiting  Cities  from  aiding  Public  Improvement 
Corporations 

In  the  fifth,  sixth,  and  seventh  decades  of  the  nineteenth  century, 
there  were  written  into  the  statute  books  of  American  states 
innumerable  laws  which  usually  authorized  but  sometimes  com- 
pelled municipal  corporations  to  issue  bonds  for  the  purpose  of 

1  It  ought  to  be  mentioned  perhaps  that  as  incorporated  into  certain  later  con- 
stitutions such  provisions  were  solely  in  the  nature  of  restrictions  upon  the  city 
as  such,  for  the  legislature  was  more  or  less  effectively  prevented  by  other  provisions 
of  these  constitutions  from  directly  requiring  the  incurrence  of  debts  or  the  levying 
of  taxes. 


56   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

subscribing  to  the  stock  of,  or  making  donations  to,  railway  cor- 
porations. The  country  went  literally  mad  over  the  alluring  pros- 
pects of  limitless  development  and  prosperity  as  a  result  of  railway 
construction.  Counties  and  cities  tread  ruthlessly  upon  one 
another's  heels  in  their  efforts  to  further  the  building  of  railways 
the  prospectuses  of  which  seemed  to  offer  convincing  proof  of  the 
fact  that  Romes  could  be  erected  in  a  much  shorter  time  than  the 
proverbial  tedious  day.  It  was  an  era  of  inconceivably  reckless 
speculation ;  and  the  public  through  the  medium  of  the  ballot  and 
its  duly  constituted  agencies  of  government  participated  with  a 
zeal  that  was  truly  spectacular  in  its  precipitateness.  But  the 
day  of  faith  was  as  short-lived  as  the  day  of  reckoning  was  bitter. 
The  doctrine  of  no  taxation  for  a  private  purpose  proved  una- 
vailing.1 

It  was  Ohio  that  led  the  way  to  reform  by  declaring  in  her  con- 
stitution of  1851 2  that  "the  general  assembly  shall  never  authorize 
any  county,  city,  town  or  township,  by  vote  of  its  citizens,  or 
otherwise,  to  become  a  stockholder  in  any  joint  stock  company, 
corporation,  or  association  whatever;  or  to  raise  money  for,  or 
loan  its  credit  to,  or  in  aid  of,  any  such  company,  corporation,  or 
association."  Indiana  followed  closely  with  a  provision  in  her 
constitution  of  the  same  year.3  This  provision  applied,  however, 
only  to  counties.  It  allowed  them  to  make  a  stock  subscription  if 
paid  for  in  cash  but  prohibited  the  borrowing  of  money  for  such 
purpose.  In  1857  there  was  added  to  the  Pennsylvania  constitu- 
tion an  amendment  similar  to  the  Ohio  provision ; 4  and  a  like 
clause  was  incorporated  into  the  Oregon  constitution 5  of  the  same 
year  and  into  the  Missouri  constitution  of  1865.6 

The  Maryland  constitutional  convention  of  1867  was  a  little 
more  timid.  It  was  provided  that  no  county  should  contract  any 
debt  in  the  construction  of  a  railway  or  other  public  improvement 

1  McBain,  "Taxation  for  a  Private  Purpose,"  in  Political  Science  Quarterly, 
29 :  185. 

»  Art.  VIII,  sec.  6. 

«  Art.  X,  sec.  6. 

4  Amendment  adding  sec.  7  to  Art.  XI. 

•  Art.  XI,  sec.  9.  •  Art.  XI,  sec.  14. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     57 

except  by  authority  of  the  legislature  given  after  publication  of 
notice  in  the  county.1  An  absolute  prohibition  in  this  respect 
was  placed  only  upon  the  city  of  Baltimore.2  So  also  the  Georgia 
constitution  of  1868  3  went  no  further  than  to  prohibit  a  subscrip- 
tion or  contribution  except  upon  a  vote  of  the  people.  Of  similar 
purport  was  the  provision  written  into  the  Mississippi  constitution 
of  1868.4  In  the  same  year  there  was  incorporated  into  the  con- 
stitution of  North  Carolina  5  a  clause  which  asserted  that  "no 
county,  city,  town  or  other  municipal  corporation  shall  contract  f 
any  debt,  pledge  its  faith  or  loan  its  credit,  nor  shall  any  tax  be 
levied  or  collected  by  any  officers  of  the  same  except  for  the  neces- j 
sary  expenses  thereof,  unless  by  a  vote  of  the  majority  of  the  quali-1 
fied  voters  therein."  While  this  somewhat  unusual  provision  has 
received  very  little  construction  at  the  hands  of  the  courts,6  it  was 
doubtless  aimed  at  action  extending  the  credit  of  municipal  cor- 
porations to  railways.  In  the  Tennessee  constitution  of  1870 
municipal  corporations  were  forbidden  to  loan  their  credit  to  pri- 
vate persons  or  corporations  except  upon  a  three-fourths  vote  of 
the  electors  ;  and  although  a  considerable  number  of  counties  were 
by  name  exempted  from  this  limitation,  only  a  majority  vote  being 
required  prior  to  the  year  1880,  all  municipal  corporations  were! 
thereafter  subject  to  the  requirement  of  the  extraordinary  votei7 
By  an  amendment  to  the  Minnesota  constitution  adopted  in  1872  8 
the  amount  of  bonds  which  a  municipal  corporation  might  issue  in 
aid  of  railway  construction  was  limited  to  ten  per  centum  of  the 
valuation  of  property  within  the  corporation ;  and  this  amount  was 
reduced  to  five  per  centum  by  another  amendment  adopted  some 
years  later.9 

1  Art.  Ill,  sec.  54. 

2  Art.  XI,  sec.  7. 

3  Art.  Ill,  sec.  6,  par.  4.     Repeated  in  somewhat  changed  form  in  the  constitution 
•of  1877;   Art.  VII,  sec.  6,  par.  1. 

4  Art.  XII,  sec.  14. 

5  Art.  VII,  sec.  7.     Repeated  in  the  constitution  of  1876 ;  Art.  VII,  sec.  7. 

6  For  a  single  instance  see  Fawcett  v.  Town  of  Mt.  Airy,  134  N.  C.  125.     1903. 

7  Art.  II,  sec.  29. 

8  Amendment  adding  sec.  14  (b)  to  Art.  IX. 

9  Amendment  adding  sec.  15  to  Art.  IX. 


58   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

Absolute  prohibitions  upon  the  power  of  the  legislature  to  au- 
thorize or  compel  the  extension  of  aid  by  municipal  corporations 
to  private  persons  or  corporations  were  incorporated  into  the 
constitutions  of  New  York  1  and  Arkansas  2  in  1874 ;  Alabama,3 
Nebraska,4  and  New  Jersey,5  in  1875;  Colorado6  and  Texas7  in 
1876 ;  Connecticut 8  and  New  Hampshire 9  in  1877 ;  and  California  in 
1879.10  In  the  year  1879  Louisiana  also  came  forward  with  a 
somewhat  half-hearted  provision  restricting  the  legislature  in  its 
power  to  allow  municipal  corporations  to  levy  taxes  "in  aid  of 
public  improvements  or  railway  enterprises"  to  taxes  that  "shall 
not  exceed  the  rate  of  five  mills  per  annum  nor  extend  for  a  longer 
period  than  ten  years."  n 

,  As  in  the  case  of  general  financial  restrictions  it  can  scarcely  be 
said  that  the  provisions  of  this  character  which  found  way  into  so 
many  constitutions  before  1880  were  aimed  at  securing  to  the  city 
a  right  against  legislative  spoliation.  In  point  of  fact  most  of  the 
railway  aid  legislation  had  been  permissive  rather  than  mandatory. 
Municipal  corporations  themselves  had  sinned  quite  as  heavily  a& 
they  had  been  sinned  against.  The  constitutional  limitations 
that  were  imposed  sought  to  protect  the  city  not  only  against  the 
legislature  but  also  against  itself.  It  is  doubtful,  therefore,  whether 
the  incorporation  of  the  provisions  here  referred  to  can  properly 

1  Amendment  adding  sec.  11  to  Art.  VIII  of  the  constitution  of  1846. 

2  Art.  XII,  sec.  5. 

3  Art.  IV,  sec.  55. 
«  Art.  XII,  sec.  2. 

5  Amendment  adding  sees.  19  and  20  to  Art.  I  of  constitution  of  1844. 

«  Art.  XI,  sees.  1,  2. 

7  Art.  Ill,  sees.  51,  52 ;   Art.  XI,  sec.  3. 

s  Amendment  XXV  to  constitution  of  1818. 

9  Amendment  to  Part  II,  sec.  5  of  constitution  of  1792. 

10  Art.  IV,  sec.  31.    Sec.  30  of  the  same  article  prohibited  also  the  giving  of  any 
donation  to  a  sectarian  institution. 

11  It  ought  to  be  mentioned  that  railway  aid  was  outlawed  in  Iowa,  although 
originally  sustained  in  Dubuque  County  ».  D.  &  P.  R.  R.  Co.,  4  Greene  (la.)  1 
(1853),  upon  the  slim  pretext  that  the  constitution  of  1857  contained  a  clause  declar- 
ing that  "this  enumeration  of  rights  shall  not  be  construed  to  impair  or  deny  others 
retained  by  the  people."     State  ex  rel.  The  B.  &  M.  R.  R.  Co.  v.  Wapello,  13  la.  388- 
(1862).     Reaffirmed  in  McClure  v.  Owen,  26  la.  243  (1868),  and  Hanson  v.  Vernon^ 
27  la.  28  (1869). 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     59 

be  cited  as  steps  in  the  direction  of  constitutional  home  rule.  The 
most  that  can  be  said  is  that  state  legislatures  had  been  active 
participants  in  the  whirlwind  of  public  corporate  speculation  that 
ensued,  and  that  these  constitutional  provisions  effectively  checked 
them  in  their  "  liberality." 


Clauses  prohibiting  Legislative  Interference  with  Streets  and  Street 

Franchises 

One  of  the  early  grievances  of  the  city  against  the  state  arose 
out  of  the  common  legislative  practice  of  passing  special  acts 
vacating  streets  at  the  behest  of  private  persons  in  interest  and  of 
opening  and  improving  streets  at  the  behest  of  land  speculators 
and  contractors.  To  cite  only  one  specific  instance  that  is  a  matter 
of  historical  record  outside  the  statute  books  (in  which  innumerable 
laws  of  this  character  bear  eloquent  testimony  to  the  extent  of  this 
reprehensible  practice)  there  existed  in  the  year  1870  in  the  one 
small  town  of  West  Farms,  which  lay  close  to  the  city  of  New  York, 
five  or  six  special  commissions  each  named  specifically  by  the  leg- 
islature for  the  purpose  of  laying  out  a  particular  road  or  avenue 
and  each  endowed  with  "  power  to  contract  debts  or  expend  moneys 
for  the  town,  to  a  certain  amount  in  most  instances,  but  in  several 
cases  without  any  limitation."  1 

As  early  as  1850  this  practice  of  ordering  the  vacating  or  open- 
ing of  streets  by  special  laws  began  to  receive  attention  in  consti- 
tutions. The  Michigan  constitution  of  that  year  declared  2  that 
the  legislature  should  pass  no  special  act  " vacating  or  altering" 
any  road  laid  out  by  commissioners  of  highways,  or  "any  street 
hi  any  city  or  village,  or  in  any  recorded  town  plat."  A  similar 
provision  was  incorporated  in  the  constitution  of  Indiana  in  1851, 3 
and  in  that  of  Iowa 4  and  of  Oregon  5  in  1857.  In  the  Missouri 
constitution  of  1865  the  prohibition  extended  not  only  to  the  va- 
cating but  also  to  the  establishment  and  alteration  of  streets, 

1  Hanlon  v.  Supervisors  of  Westchester,  57  Barb.  (N.  Y.)  383  (1870),  supra,  36. 

2  Art.  IV,  sec.  23.  *  Art.  Ill,  sec.  30. 

3  Art.  IV,  sec.  22.  5  Art.  IV,  sec.  23. 


60      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

alleys,  and  avenues.1  Before  the  year  1890  a  comprehensive  pro- 
hibition of  this  character  had  been  incorporated  into  the  constitu- 
tions of  at  least  five  additional  states.2  At  the  present  time  a 
prohibition  upon  the  legislature  in  respect  to  this  specific  matter 
is  found  in  the  constitutions  of  a  majority  of  the  states,  although 
in  a  number  of  instances  this  prohibition  appears  to  be  sufficiently 
covered  by  other  broader  limitations  imposed  upon  the  powers 
of  the  legislature  over  the  affairs  of  cities. 

Another  specific  abuse  by  the  legislature  of  its  absolute  power 
over  city  streets  arose  out  of  the  development  of  street  railways. 
When  the  system  of  rail  transportation  began  to  be  introduced 
in  American  cities  during  the  decade  immediately  preceding  the 
Civil  War,  it  was  the  more  common,  though  not  invariable,  practice 
to  secure  the  necessary  franchise  for  this  new  and  unusual  use  of  the 
public  streets  from  the  legislature  of  the  state  under  a  special  act. 
Some  of  the  early  grants,  and  especially  those  made  during  the  ex- 
perimental state  of  the  street  railway  business,  required  local  con- 
sent and  contained  surprisingly  strict  guarantees  protecting  the 
interests  of  the  public.  But  no  sooner  had  the  potential  profits 
of  the  business  become  manifest  to  promoters  and  politicians  than 
legislatures  throughout  the  country  entered  upon  a  season  of  great 
activity  in  bartering  away,  often  in  perpetuity  and  without 
compensation  of  any  kind,  enormous  values  in  the  public  streets. 
Indeed  it  was  the  state  legislature  which  during  this  era  paved  the 
rough  way  along  which  many  a  city  is  still  traveling  toward  the 
almost  impossible  solution  of  its  transportation  problems.  It  is 
not  surprising  that  this  shameless  legislative  practice  soon  bee  ame 
a  conspicuous  target  for  the  reformers  among  an  outraged  people, 
and  that  a  constitutional  limitation  should  have  been  resorted  to 
as  the  only  possible  remedy  for  the  evil. 

The  reconstruction  constitution  in  Missouri,  adopted  in  1865, 
was  the  first  constitution  in  which  a  provision  aimed  specifically 

1  Art.  IV,  sec.  27. 

2  New  York  amendment  of  1874  adding  section  18  to  Art.  Ill  of  the  constitution 
of  1846 ;    New  Jersey  amendment  of  1875  adding  section  7  to  Art.  IV  of  the  con- 
stitution of  1844 ;  Texas  constitution  of  1876,  Art.  Ill,  section  56  ;   Louisiana  con- 
stitution of  1879,  Art.  46 ;  California  constitution  of  1879,  Art.  IV,  sec.  25. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     61 

at  this  abuse  was  incorporated.  It  was  there  simply  provided  that 
the  legislature  should  not  pass  any  special  law  "  granting  to  any  in- 
dividual or  company  the  right  to  lay  down  railroad  tracks  in  the 
streets  of  any  city  or  town."  l  Obviously  such  a  prohibition  would 
not  of  necessity  result  in  the  enactment  of  sound  legislation  govern- 
ing the  matter  of  future  franchise  grants ;  but  it  would  go  a  long 
step  in  that  direction  by  eliminating  the  element  of  specific  appli- 
cation in  such  grants.  Legislatures  have  through  heedlessness 
and  inattention,  as  well  as  through  positive  corruption,  enacted 
innumerable  laws  of  specific  application  embodying  principles  and 
policies  which  they  would  have  hesitated  to  incorporate  into  general 
laws. 

In  the  Illinois  constitution  of  1870  there  was  included  a  provi- 
sion of  somewhat  different  import  which  nevertheless  imposed  an 
important  restriction  upon  the  legislature  in  the  matter  of  street 
railway  grants.  It  was  declared  that  the  legislature  should  enact 
no  law  "  granting  the  right  to  construct  and  operate  a  street  rail- 
road within  any  city,  town  or  incorporated  village,  without  re-  , 
quiring  the  consent  of  the  local  authorities  having  control  of  the  : 
street  or  highway."  2  Here  was  a  clear  case  of  the  establishment  of 
a  home  rule  right  —  the  right  to  have  every  such  proposed  grant 
referred  to  the  local  authorities.  An  identical  provision  was  in- 
corporated into  the  West  Virginia  constitution  of  1872.3 

Beginning  with  the  year  1860  the  legislature  of  New  York 
summarily  abandoned  its  first  policy  in  the  matter  of  street  railway 
grants.  Up  to  that  time,  under  a  general  law  enacted  in  1854, 
this  policy  had  been  commendably  sane  and  considerate  toward  the 
interest  of  cities.  There  followed,  however,  an  era  of  special 
legislative  grants  that  showed  a  callous  disregard  for  the  " rights" 
of  the  public  and  a  criminally  prodigal  liberality  toward  private 
interests  that  made  secret  or  open  application  to  the  legislature  for 
wholly  unreasonable  concessions.  The  situation  became  intoler- 
able. It  was  met  by  the  adoption  in  1874,  after  much  irretrievable 
damage  had  been  wrought,  of  an  amendment  to  the  constitution 

1  Art.  IV,  sec.  27.  2  Art.  XI,  sec.  4. 

3  Art.  XI,  sec.  5. 


62   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

which  not  only  prohibited  special  legislation  on  the  subject  of  street 
railway  grants  but  also  required  local  consent  and  elaborated  in 
some  detail  the  manner  in  which  such  grants  might  be  legally  ac- 
quired.1 So  thoroughly,  however,  had  the  field  of  possible  street 
railway  construction  been  occupied  under  previous  special  grants 
that  it  was  not  until  ten  years  later  that  the  legislature  found  it 
necessary  to  enact  the  general  law  which  the  amendment  com- 
manded. 

In  1875  the  legislature  of  New  Jersey  was  by  a  constitutional 
amendment  prohibited  from  granting  the  right  to  lay  tracks  under 
special  acts.2  Provisions  were  incorporated  in  the  Alabama  and 
Missouri  constitutions  of  the  same  year  requiring  the  acquies- 
cence of  local  authorities  in  such  matters.3  The  Colorado  con- 
stitution of  1876  contained  both  provisions.4  The  Texas5  and 
Georgia 6  constitutions  of  1876  and  1877  respectively  made  local 
consent  obligatory ;  while  the  Louisiana  constitution  of  1879  7  fol- 
lowed the  plan  of  prohibiting  any  street  railway  grant  by  special  law. 
It  was  thus  by  one  or  the  other  or  both  of  these  methods  that  the 
people  in  more  than  one  state  sought  to  outlaw  the  grievous  abuse 
of  legislative  domination  over  the  " rights"  of  the  city  in  its  streets. 

This  sketchy  review  of  the  provisions  that  were  introduced  into 
state  constitutions  with  the  end  in  view  of  proscribing  specific  and 
outrageous  legislative  abuses  of  the  "rights"  of  cities  is  doubtless 
sufficient  to  indicate  the  general  direction  in  which  events  were 
moving.  The  practices  of  state  legislatures  toward  cities  had  been 
scandalously  opprobrious.  We  in  America  had  accustomed  our- 
selves to  meet  such  situations  not  through  the  medium  of  the  ballot- 
box  and  the  active  play  of  public  opinion  but  through  the  medium 
of  our  all-powerful  fundamental  laws.  Reverence  for  these  sacred 
instruments  of  our  government  we  easily  and  perhaps  naturally 
transformed  into  a  sublime  faith  in  our  ability  to  discover  the  auto- 

1  Amendment  adding  section  18  to  Art.  Ill  of  the  constitution  of  1846. 

8  Amendment  to  section  7  of  Art.  IV  of  the  constitution  of  1844. 

» Ala.,  Art.  XIII,  sec.  24 ;  Mo.,  Art.  XII,  sec.  20. 

<  Art.  V,  sec.  25;  Art.  XV,  sec.  11.  «  Art.  Ill,  sec.  7,  par.  20. 

*  Art.  X,  sec.  7.  »  Art.  46. 


LIMITATIONS  ON  SPECIFIC  LEGISLATIVE  ABUSES     63 

matic  in  political  institutions.  Was  not  ours  a  "government  of 
laws  and  not  of  men  "  ?  What  mattered  the  pathology  of  the  case  ? 
We  were  experts  in  anatomy.  And  so  with  deft  and  confident 
hands  we  applied  our  surgeon's  knife  to  the  more  irritating  sore 
spots  that  appeared  upon  the  body  politic.  Some  relief  we  found ; 
but  the  lesion  was  too  deep-seated  for  such  surface  treatment. 
Lying  as  it  did  in  the  mental  attitude  and  the  firmly  fixed  habits  of 
state  legislatures,  it  affected  the  entire  gamut  of  relations  between 
the  city  and  the  state.  But  this  is  only  to  say  that  it  affected  every 
minute  aspect  of  municipal  life ;  for  the  city,  be  it  remembered, 
was  completely  subordinated  to  the  will  of  its  superior,  the  legisla- 
ture. Obviously,  then,  since  without  hesitation  we  pinned  our 
faith  to  the  efficacy  of  constitutional  restrictions  upon  the  power 
of  the  legislature  over  cities,  it  seemed  unavoidable  that  we  should 
endeavor  to  reach  the  lesion  and  cure  the  whole  grievous  ailment 
by  imposing  upon  legislatures  constitutional  limitations  of  a  more 
general  and  comprehensive  character. 


CHAPTER  III 

CONSTITUTIONAL  PROHIBITION  AGAINST  SPECIAL 
LEGISLATION  FOR  CITIES 

THE  first  shaft  that  was  ever  leveled  in  the  United  States  against 
the  development  of  industry  under  corporate  form  found  expression 
in  the  New  York  constitution  of  1821.  With  the  object  of  imposing 
a  limited  check  upon  the  increasing  activities  of  the  legislature  in 
granting  corporate  charters,  it  was  provided  that  "the  assent  of 
two-thirds  of  the  members  elected  to  each  branch  of  the  legislature 
shall  be  requisite  to  every  bill  .  .  .  creating,  continuing,  altering, 
or  renewing  any  body  politic  or  corporate."  1  There  was  here  no 
express  exception  made  of  municipal  corporations.  Literally  con- 
strued the  requirement  obviously  included  all  corporate  charters. 
On  the  other  hand,  there  is  no  question  whatever  that  it  was 
especially  directed  to  the  case  of  the  charters  of  private  corpora- 
tions and  more  especially  perhaps  the  charters  of  banking  and 
insurance  companies.  The  convention  which  drafted  this  consti- 
tution does  not  appear  to  have  considered  its  application  to  and 
effect  upon  the  legislative  power  over  the  charters  of  cities  proper.2 
An  objection  was  made  upon  the  convention  floor  that  the  provi- 
sion would  necessitate  a  vote  of  "  two-thirds  of  the  legislature  to 
incorporate  a  village,  bridge,  or  turnpike ;"  and  answer  was  given 
that  "  two-thirds  would  never  be  wanting"  for  such  purpose.3  But 
.this  was  the  beginning  and  end  of  the  discussion  upon  this  point. 

It  is  not  certain  whether  in  practice  the  legislature  of  the  state 
did  or  did  not  construe  this  provision  as  applying  to  the  charters  of 

1  Art.  VII,  sec.  9. 

2  Only  four  cities  existed  in  New  York  in  1821. 

3  Carter  and  Stone,  Proceedings  and  Debates  of  the  New  York  Constitutional  Con- 
vention of  1821,  p.  446. 

64 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       65 

municipal  corporations.1  But  however  this  may  have  been,  it  is 
certain  that  no  judicial  determination  in  respect  to  the  matter  was 
reached  until  1835,  when  in  the  case  of  The  People  v.  Morris  2  the 
supreme  court,  delivering  through  Chief  Justice  Nelson,  declared 
that  the  provision  in  question  had  no  application  to  municipal 
charters.  This  decision  was  based  upon  the  ground  that  the 
provision  certainly  did  not  apply  to  counties  and  towns,  which 
nevertheless  were  bodies  "politic  and  corporate,"  for  if  so  "most  of 
the  legislation  of  the  state  must  be  in  conformity  to  this  provision," 
and  on  the  further  ground  that  the  intention  of  those  who  drafted 
the  constitution  was  only  to  prevent  the  multiplication  of  private 
corporations.3  The  Morris  case  was  collaterally  reaffirmed  by  the 
court  of  errors  five  years  later  in  the  case  of  Warner  &  Ray  v.  Beers.4 
But  in  1842  the  court  of  errors  by  a  vote  of  thirteen  to  eleven  over- 
turned the  doctrine  of  the  Morris  case  and  held  that  municipal  cor- 
porations were  included  within  the  limitation  set  upon  the  legisla- 
ture by  this  provision.3  Here,  then,  was  a  very  early  instance  in 
American  constitutional  development  of  a  provision  which  was 
construed  as  imposing  an  express  limitation  upon  the  legislature  in 
its  power  over  municipal  charters.  And  although  it  must  be  ad- 
mitted that  it  was  somewhat  slight  in  its  scope  and  that  it  was  in- 

1  In  Purdy  v.  The  People,  4  Hill  (N.  Y.)  384  (1842),  Senator  Paige  in  the  course 
of  his  opinion  declared  (p.  399)  "that  the  entire  current  of  legislative  precedent  since 
the  constitution  went  into  effect  has  been  against  the  doctrine  I  have  been  combat- 
ing.    I  do  not  recollect  an  instance,  during  the  period  of  my  connection  with  either 
branch  of  the  legislature,  when,  on  a  bill  creating  or  altering  the  charter  of  a  city 
or  village,  the  question  on  its  final  passage  was  not  put  as  upon  a  two-thirds  bill." 

A  quite  contradictory  view  of  the  legislative  practice  in  this  regard  was  given  by 
Chancellor  Walworthin  Warner  &  Ray  v.  Beers,  23  Wend.  (N.  Y.)  103,  126  (1840). 
He  said:  "The  legislature  has  also  given  the  same  practical  construction  to  thia 
constitutional  provision  in  a  great  variety  of  cases,  by  giving  to  towns  and  counties 
corporate  powers  for  many  purposes,  by  mere  majority  bills,  and  by  altering  and 
amending  the  charters  of  cities  and  villages  and  other  public  corporations  in  the 
same  manner,  for  the  purpose  either  of  enlarging,  restricting  or  modifying  their 
political  powers  and  privileges." 

2  13  Wend.  (N.  Y.)  325.     1835. 

3  The  learned  chief  justice  was  himself  a  member  of  the  convention  of  1821. 

4  23  Wend.  (N.  Y.)  103.     1840. 

6  Purdy  v.  The  People,  4  Hill  (N.  Y.)  384  (1842),  affirming  The  People  v.  Purdy, 
2  Hill  (N.  Y.)  31  (1841). 


66   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

troduced  if  not  wholly  by  inadvertence  certainly  without  studied 
design  to  afford  protection  to  municipal  corporations,  it  neverthe- 
less did  as  ultimately  construed  and  applied  by  the  courts  set  up 
a  degree  of  protection  that  was  by  no  means  inconsiderable. 

This  requirement  of  the  New  York  constitution  of  1821  was 
copied  into  the  Michigan  constitution  of  1835 ; l  but  it  does  not 
appear  that  the  courts  of  that  state  were  ever  called  upon  during 
the  fifteen  years  of  the  existence  of  this  constitution  to  determine 
whether  or  not  the  provision  in  question  extended  to  cover  munici- 
pal charters.2 

As  an  effective  check  upon  the  legislature  in  the  matter  of  issuing 
charters  even  to  private  corporations  the  provision  in  New  York 
requiring  a  two-thirds  vote  proved  largely  a  failure.3  In  the 
course  of  a  few  years  it  became  manifest  also  that  the  real  evil  to 
be  avoided  lay  not  so  much  in  the  number  of  corporations  that 
might  spring  into  being  as  in  the  inequality  of  powers  and  privileges 
that  were  conferred  upon  such  corporations  under  their  special 
charters.  This  evil,  it  was  rightly  thought,  could  be  remedied  in 
larger  part  by  depriving  the  legislature  entirely  of  its  power  to 
|  incorporate  companies  by  special  acts  and  requiring  that  charters 
be  issued  under  the  authority  of  general  laws. 

Prohibitions  on  Special  Legislation  for  Private  Corporations 

The  Louisiana  constitution  of  1845  led  off  with  a  provision  of 
this  kind.  It  was  declared  that  "corporations  shall  not  be  created 
in  this  state  by  special  laws,  except  for  political  or  municipal  pur- 
poses." 4  An  identical  clause  was  incorporated  into  the  Iowa 
constitution  of  1846.5  In  the  New  York  constitution  of  the  same 
year  a  similar  provision  was  introduced,  but  even  as  to  private 

*  Art.  XII,  sec.  2. 

2  A  similar  provision  in  the  Texas  constitution  of  1845  was  expressly  limited  to 
private  corporations,  Art.  VII,  sec.  31. 

3  "In  the  session  of  1823,  the  first  session  of  the  legislature  under  the  operation 
of  this  check,  there  were  thirty-nine  new  private  companies  incorporated,  besides 
numerous  other  acts,  amending  or  altering  charters."     Kent's  Commentaries  (14th 
ed.),  II,  pp.  415,  416. 

«  Title  VI,  art.  123.  •  Art.  VIII,  sec.  2. 


PROHIBITIONS   AGAINST  SPECIAL  LEGISLATION       67 

corporations  it  was  emasculated  by  the  insertion  of  a  proviso  to  the 
effect  that  corporations  might  still  be  created  under  special  acts 
"when  in  the  judgment  of  the  legislature  the  objects  of  the  cor- 
poration cannot  be  attained  under  general  laws."  1 

When  the  proposition  was  made  upon  the  floor  of  the  New 
York  convention  to  except  municipal  corporations  from  the  opera- 
tion of  the  proposed  clause  relating  to  special  acts  of  incorporation, 
Delegate  Henry  C.  Murphy  of  Brooklyn  argued  brilliantly  and 
forcefully  in  favor  of  a  policy  of  general  legislation  for  municipal 
as  well  as  for  private  corporations.2  There  is  no  question,  however, 
that  his  interest  in  the  establishment  of  such  a  policy  was  prompted 
by  concern,  not  for  the  "rights"  of  cities  as  such,  but  for  the  rights 
of  persons  and  of  property  which  were  subjected  to  inequalities  as 
the  result  of  wide  variations  in  the  charter  provisions  of  cities. 
A  municipal  charter,  he  declared,  "is  a  piece  of  empiricism  by  the 
wiseacres  of  the  place  where  it  is  to  be  put  in  force.  After  being 
prepared  at  home,  it  is  sent  to  the  legislature  to  be  passed.  When 
it  reaches  that  body,  no  one  except  the  representative  from  that 
locality  cares  what  it  contains.  It  is  thus  left  in  charge  of  the  same 
interest  as  that  which  prepared  it.  He  would  appeal  to  every 
member  of  the  convention  who  had  been  a  member  of  the  legis- 
lature if  that  was  not  the  course  pursued  in  reference  to  all  local 
bills."3  In  consequence  of  this  practice,  "every  city  may  be' 
said  to  be  a  law  unto  itself ;  and  the  sovereignty  of  the  state, 
instead  of  being  exercised  in  its  behalf,  is  absolutely  surrendered 
to  it,  to  be  used  at  its  own  discretion."  4  In  other  words,  it  was 
the  burden  of  his  complaint  that  in  practice  special  legislation  for 
cities  resulted  in  too  great  liberty  of  action  and  not  in  too  great 
restriction  or  interference.  In  fact  "he  believed  the  grossest  vio- 
lations of  personal  rights  were  to  be  found  in  our  municipal  corpo- 
rations;" and  however  important  the  prohibition  on  special  acts 
of  incorporation  "might  be  in  reference  to  other  corporations,  it 
was  still  more  so  in  regard  to  them."  5  As  specific  instances  of  the 

1  Art.  VIII,  sec.  1. 

2  Debates  and  Proceedings  in  the  New  York  State  Convention  of  1846  (Croswell  & 
Sutton  ed.),  pp.  738-741.  4  Ibid.,  p.  740. 

3  Ibid.,  p.  739.  6  Ibid.,  p.  738. 


68   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

evils  he  decried,  he  cited  in  some  detail  the  differing  provisions  of 
the  charters  of  New  York,  Brooklyn,  Albany,  Rochester,  and 
Buffalo  on  the  subject  of  the  opening  of  streets  and  the  levying 
of  special  assessments,1  which  provisions  resulted  in  radical  ine- 
qualities of  the  rights  of,  or  the  burdens  upon,  the  property  owners 
of  one  city  as  compared  with  those  of  another. 

To  this  really  able  argument  against  what  was  at  that  time 
doubtless  the  principal  evil  of  the  special  municipal  charter,  prac- 
tically no  counter-argument  was  interposed  upon  the  floor  of  the 
convention.  But  however  convinced  its  members  may  have  been 
of  the  existence  of  this  evil,  they  were  evidently  not  convinced  of  the 
desirability  of  meeting  it  by  the  heroic  method  of  inhibiting  all 
special  legislation  for  cities.  In  the  final  form  in  which  the  clause 
was  incorporated  into  the  constitution,  municipal  corporations  were 
expressly  and  wholly  excepted  from  its  application. 

This  provision  of  the  New  York  constitution  of  1846  was  copied 
verbatim  into  the  Wisconsin  constitution  of  1848.2  The  Califor- 
nia3 constitution  of  1849  and  the  Michigan4  constitution  of  1850  fol- 
lowed the  Louisiana  and  Iowa  provisions.  It  remained  for  the  Ohio  8 
and  Indiana  6  conventions  of  1850-51  to  extend  the  prohibition 
upon  special  acts  of  incorporation  to  include  municipal  corporations. 

Prohibition  Against  Special  Legislation  for  Cities  in  the  Ohio 
Constitution  of  1851 

In  the  case  of  Ohio  it  can  scarcely  be  said  that  the  debates  of 
the  convention  disclose  a  deliberateness  of  purpose  to  interdict  a 
legislative  abuse  from  which  the  cities  of  the  state  had  greatly 
suffered.  On  the  contrary,  it  seems  tolerably  clear  that  special 
legislation  for  municipal  corporations  was  prohibited  along  with 
special  legislation  for  private  corporations  chiefly  because  no  very 

1  As  showing  further  that  Mr.  Murphy's  interest  was  primarily  in  the  property 
owner  and  not  in  the  city,  see  the  argument  which  he  advanced  against  the  power 
of  a  city  to  condemn  private  property  for  opening  streets  and  to  pay  for  such  im- 
provement by  special  assessments.  He  held  that  the  opening  of  streets  was  far 
more  a  private  than  a  public  purpose.  Ibid.,  pp.  810,  811. 

8  Art.  XI,  sec.  1.  «  Art.  XV,  sec.  1.  «  Art.  XI,  sec.  13. 

8  Art.  IV,  sec.  31.  •  Art.  XIII,  sees.  1  and  2. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       69 

adequate  objections  to  the  establishment  of  such  a  policy  were 
advanced,  and  perhaps  also  because  one  of  the  main  reasons  for 
the  call  of  the  convention  was  that  it  should  deal  effectively  with 
the  general  legislative  practice  of  the  special  act  in  all  of  its  aspects. 
The  convention  did  not  provide  even  a  committee  on  cities.  When 
the  committee  on  corporations  reported  the  comprehensive  section, 
which  was  ultimately  adopted,  to  the  effect  that  "the  general  as- 
sembly shall  pass  no  special  act  conferring  corporate  powers,"  1 
it  was  asserted  by  the  chairman  of  the  committee;  referring  to 
similar  provisions  of  other  recent  constitutions,  that  "there  was 
no  very  definite  conclusion  come  to  on  the  part  of  the  committee, 
whether  this  exception  [of  municipal  corporations]  should  be  named 
or  not."  They  concluded,  nevertheless,  "to  make  this  report  with- 
out a  section  of  that  nature,"  believing  "that  all  the  corporations  of 
the  state  could  be  as  well  regulated  by  general  as  by  special  acts  of 
incorporation."  So  far  as  he  personally  was  concerned,  "it  was  a 
matter  of  little  moment  whether  the  power  to  pass  [special]  laws  for 
the  government  of  cities  was  given  to  the  legislature  or  not."  2 

Another  member  "desired  any  gentleman  to  point  out  the  ex- 
ception —  any  legitimate  object  of  a  [municipal]  corporation  which 
could  not  be  as  well  provided  for  and  secured  by  a  general  as  well 
as  [sic]  a  special  act — let  him  point  it  out  and  he  would  go  with  him 
for  the  exception.  But  if  this  thing  could  not  be  done  in  favor 
of  municipal  corporations  then  he  would  go  for  retaining  the  section 
as  it  stands."  3  Another  "considered  that  there  was  no  necessary 
difficulty  about  legislating  by  general  law  upon  the  subject  of  mu- 
nicipal corporations." 4  And  although  doubt  was  expressed  by  one 
or  two  members  as  to  the  advisability  of  requiring  general  laws  for 
cities,5  while  one  asserted  that  he  did  not  apprehend  "that  there 
was  any  necessity  for  a  general  law  on  this  subject,"  6  and  still 

1  Art.  XIII,  sec.  1. 

2  Remarks  of  Mr.  Norris,  Report  of  Debates  and  Proceedings  of  the  Ohio  Convention 
of  1850-51,  I,  p.  340. 

3  Remarks  of  Mr.  Stanton,  ibid.,  I,  p.  342. 

4  Remarks  of  Mr.  Hawkins,  ibid.,  I,  p.  347. 

e  Remarks  of  Mr.  Hitchcock,  ibid.,  I,  p.  346;  of  Mr.  Norris,  ibid.,  I,  p.  351. 
« Ibid.,  I,  p.  346. 


70   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

another  declared  that  the  provision  as  proposed  "goes  beyond  the 
most  experimenting  state  in  the  Union,"  1  there  was  apparently 
very  little  solid  discussion  either  of  the  reasons  for,  or  of  the  argu- 
ments against,  the  requirement  of  general  legislation  for  cities. 
The  requirement  was  simply  swept  into  the  constitution  upon  the 
tide  of  numerous  other  restrictions  upon  legislative  action. 

In  addition  to  the  prohibition  of  special  acts  "conferring  corpo- 
rate powers,"  no  exception  being  made  of  municipal  corporations, 
there  was  inserted  in  the  same  article  of  the  Ohio  constitution  a 
section  which  declared  that  "the  general  assembly  shall  provide 
for  the  organization  of  cities,  and  incorporated  villages,  by  general 
laws,  and  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
the  abuse  of  such  power."  2  It  will  be  observed  that,  with  one  sig- 
nificant difference,  the  phrasing  of  this  section  was  precisely  iden- 
tical with  that  of  the  provision  which  had  been  written  into  the  con- 
stitutions of  New  York  (1846),  Wisconsin  (1848),  California  (1849), 
and  Michigan  (I860),3  and  which  was  manifestly  intended  to  im- 
pose a  sort  of  moral  obligation  upon  the  legislature  to  restrain 
municipal  corporations  in  their  financial  affairs.  The  significant 
difference  lay  in  the  words  "by  general  laws;  "  but  manifestly 
these  words  only  served  to  make  more  certain  and  explicit  the  policy 
which  the  convention  was  consciously  inaugurating  of  providing 
for  the  government  of  cities  under  general  statutes.  No  particular 
importance,  therefore,  can  be  attached  to  the  fact  that  this  provi- 
sion was  adopted  without  a  single  word  of  debate.4 

The  first  legislature  which  met  under  the  Ohio  constitution  of 
1851  fulfilled  the  duty  imposed  upon  it  by  these  provisions  without 
hesitation  or  equivocation.  A  general  act  "to  provide  for  the  or- 
ganization of  cities  and  incorporated  villages"  was  promptly 
enacted.5  By  this  law  all  municipal  charters  then  in  force  were 

1  Remarks  of  Mr.  Hitchcock,  Report  of  Debates  and  Proceedings  of  the  Ohio  Con- 
vention of  1850-51,  I,  p.  348. 

2  Art.  XIII,  sec.  6. 

3  Supra,  52,  53. 

*  See  brief  of  counsel,  20  Oh.  St.,  at  p.  26. 

»  Act  of  May  3,  1852 ;   Laws  of  Ohio,  1852,  pp.  223-259. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       71 

wiped  completely  out  of  existence  and  a  uniform  government  was 
imposed  upon  each  of  the  two  classes  of  cities  that  were  created.1 
In  the  course  of  a  year  or  two  it  was  found  necessary  or  advisable, 
as  might  have  been  expected,  to  amend  this  general  law  in  certain 
respects ; 2  but  there  was  no  indication  of  a  disposition  on  the  part 
of  the  legislature  to  vitiate  its  most  important  characteristic  — 
namely,  its  generality.  This  gave  high  promise  of  a  continuance 
of  legislative  deference  toward  the  letter  and  spirit  of  this  new 
and  wholly  unusual  requirement. 

Then  suddenly,  in  1856,  the  legislature  made  bold  to  enact, 
without  any  effort  whatever  at  disguise,  an  unmistakably  special 
law  regulating  matters  pertaining  to  justices  of  the  peace  and  con- 
stables in  the  city  of  Cleveland.3  In  1857  two  other  laws  of  this 
special  character  were  enacted  for  Cleveland,4  and  another  act  con- 
ferred a  specific  power  upon  the  " incorporated  village  of  Bethel."  5 
In  1858  seven  laws  applicable  to  specific  cities  or  villages  were  in- 
corporated into  the  statutes.6  In  1859  fifteen  such  acts  were 
passed.7 

It  is  difficult  to  explain  what  may  have  been  the  probable  theory 
of  the  legislature  as  to  its  constitutional  competence  to  enact  laws 

1  All  cities  of  over  twenty  thousand  inhabitants  constituted  the  first  class ;  all 
other  cities  wese  grouped  into  the  second  class.  As  a  matter  of  fact  mdst  of  the 
provisions  of  the  law  applied  uniformly  to  all  cities,  the  chief  difference  between  the 
two  classes  being  as  to  the  larger  number  of  administrative  offices  provided  for 
first-class  cities. 

1  Act  of  March  11,  1853  ;  Laws  of  Ohio,  1864,  pp.  29,  30,  47,  62,  68,  79,  125,  131. 

3  Laws  of  Ohio,  1856,  p.  234. 

4  Ibid.,  1857,  pp.  252,  262. 
•  JWd.,  p.  254. 

8  Laws  of  Ohio,  1858.  These  acts  were  as  follows :  "to  authorize  the  board  of 
education  of  the  city  of  Hamilton  to  borrow  money"  (p.  175) ;  "to  authorize  the 
city  council  of  the  city  of  Lancaster  to  borrow  money  to  erect  a  city  hall  and  other 
buildings"  (p.  169);  "authorizing  the  board  of  education  of  the  incorporated 
village  of  Athens  to  borrow  money  "  (p.  168) ;  "  to  authorize  the  council  of  the  in- 
corporated village  of  Painesville  to  borrow  money"  to  improve  Main  street  (p.  178)  ; 
"to  authorize  the  incorporated  village  of  Washington  to  take  testimony  and  estab- 
lish the  corner  or  point  from  which  to  make  future  surveys"  (p.  190) ;  and  to  au- 
thorize the  boards  of  education  of  Logan  and  of  New  Lexington  to  borrow  money 
(pp.  181,  192). 

7  Laws  of  Ohio,  1859,  pp.  204,  256,  257,  258,  262,  263,  273,  278,  280,  281,  284, 
289,  299. 


72   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

of  this  character.  If  the  manifestly  attenuated  view  was  held  that, 
having  provided  as  the  constitution  commanded  "for  the  organiza- 
tion of  cities  and  incorporated  villages  by  general  laws/'  the  legis- 
lature was  not  prohibited  from  thereafter  enacting  special  laws  for 
cities  and  villages  under  the  general  law,  it  was  nevertheless  ob- 
vious that  practically  every  one  of  these  acts  was  a  "  special  act 
conferring  corporate  powers."  As  such  it  was  within  the  plain 
inhibition  of  a  comprehensive  provision  of  the  constitution  from  the 
operation  of  which  "corporations  for  municipal  purposes"  had  by 
express  design  of  the  convention  not  been  excluded.  But  whatever 
interpretation  the  legislature  may  have  put  upon  these  require- 
ments of  the  constitution,  the  fact  of  importance  remains  that  the 
number  of  special  acts  of  this  kind  steadily  increased  from  session 
to  session  of  the  Ohio  legislature.  Nor  was  this  practice  ever  ques- 
tioned before  the  courts  until  the  year  1870  —  eighteen  years  after 
the  constitution  became  effective  and  fourteen  years  after  the  first 
of  these  statutes  was  enacted. 

The  question  of  the  competence  of  the  legislature  to  enact  such 
laws  was  first  presented  to  the  courts  in  a  case  involving  the  valid- 
ity of  a  statute  extending  the  boundaries  of  Cincinnati.1  Relying 
upon  the  above-mentioned  provisions  of  the  constitution  and  re- 
ferring to  the  proceedings  and  debates  of  the  convention  of  1851, 
the  court  declared  that  "it  was  one  of  the  ends  and  aims  of  the  con- 
stitutional convention,  and  of  the  people  who  adopted  the  frame- 
work of  a  constitution  which  that  convention  presented  for  their 
adoption  or  rejection,  to  cut  up  by  the  roots,  at  once  and  forever, 
all  capacity  of  the  general  assembly  to  confer  by  special  act  any 
powers  whatsoever  upon  any  corporate  body  whatsoever."  It 
was  held  that  the  act  in  question  conferred  upon  the  city  general 
powers  of  municipal  government  over  territory  not  formerly  em- 
braced within  the  city  and  that  in  consequence  it  was  a  "special 
act  conferring  corporate  powers."  It  was,  therefore,  "clearly 
in  contravention  of  the  restrictive  provisions  of  the  constitution 
and  of  no  binding  force  and  validity." 

1  State  ex  rel.  The  Attorney  General  v.  The  City  of  Cincinnati,  20  Oh.  St.  18 
(1870).  The  law  in  question  was  enacted  April  16,  1870. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       73 

In  rendering  this  decision  the  court  did  not  refer  to  the  innu- 
merable acts  of  similar  character  which  had  been  passed  by  the  leg- 
islature with  impunity  throughout  a  long  series  of  years,  although 
the  attention  of  the  court  was  directed  to  this  mass  of  legislation 
by  counsel  in  the  case.1  The  decision  had  the  effect,  however,  of 
putting  an  abrupt  stop  to  the  policy  of  enacting  undisguised  special 
laws  for  cities.  At  the  same  time  it  only  accelerated  another  prac- 
tice of  the  legislature  which  had  been  gaining  ground  in  Ohio  since 
1856. 

When  the  general  law  of  1852  was  enacted,  Cincinnati,  being  the 
only  city  of  the  state  with  a  population  of  more  than  twenty 
thousand  inhabitants,  found  itself  the  sole  representative  of  "cities 
of  the  first  class." 2  Within  a  few  years,  however,  Columbus  and 
Cleveland  had  pressed  forward  into  this  class ;  and  there  was  al- 
most immediately  a  noteworthy  change  of  attitude  on  the  part 
of  the  legislature.  In  1856  two  laws  were  enacted  which  in  effect 
ignored  the  general  classification  established  four  years  earlier, 
and  inaugurated  the  policy  of  special  classification.3  From  this 
time  on  the  practice  of  enacting  special  laws  for  cities  under  the 
thin  guise  of  specious  classifications  grew  steadily  in  legislative 
favor,  its  popularity  being  naturally  increased  by  the  decision  of 
1870.  In  fact  the  constitutional  requirement  of  general  legisla- 
tion was  in  course  of  time  so  completely  circumvented  by  this 
subterfuge  that  the  situation  became  little  short  of  ridiculous. 

In  1902  this  practice  was  brought  to  a  sudden  termination  by  the 
revolutionary  decision  of  the  supreme  court  in  the  case  of  the  State 
ex  rel.  Knisely  v.  Jones.4  A  long  line  of  decisions  was  abruptly 
overturned,  and  the  rule  was  laid  down  that  the  classification  of 
cities  for  any  purpose  whatever  was  wholly  unconstitutional. 
Under  this  decision  almost  the  entire  legal  foundation  upon  which 

1  Ibid.,  p.  20. 

2  According  to  the  census  of  1850,  the  population  of  Cincinnati  was  115,436 ; 
of  Columbus,  17,882 ;   of  Cleveland,  17,034 ;   of  Dayton,  10,977. 

8  Laws  of  Ohio,  1856,  p.  214  (excepting  cities  of  over  100,000  inhabitants)  and 
p.  57  (applicable  only  "to  such  cities  of  the  first  class  as  at  the  last  federal  census 
had  a  population  of  less  than  80,000  inhabitants"). 

4  66  Oh.  St.  453.     1902. 


74   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

the  governments  of  the  cities  of  the  state  rested  was  utterly  de- 
stroyed. The  legislature  was  hastily  summoned  to  meet  the  ex- 
traordinary situation  and  a  uniform  charter  applicable  to  every  city 
of  the  state  without  classification  was  substituted  for  the  statutory 
chaos  which  in  the  latest  view  of  the  court  had  been  declared  to  be 
wholly  invalid.1 

To  sum  up  the  history  of  the  requirement  of  general  legislation 
for  cities  as  incorporated  into  the  Ohio  constitution  of  1851,  it  may 
be  said  (1)  that  the  requirement  was  apparently  not  designed  by 
its  framers  with  the  specific  end  in  view  of  prohibiting  an  existing 
legislative  abuse — to  wit,  "interference"  with  city  affairs ;  (2)  that 
there  appeared,  nevertheless,  to  be  no  ambiguity  as  to  its  meaning 
and  that  it  should  have  effectively  prevented  at  least  all  special 
interference ;  (3)  that  it  partially  failed  in  this  respect  because  the 
legislature,  in  spite  of  the  plainness  of  the  requirement,  did  in  fact 
pass  numerous  special  laws  applicable  to  cities  —  a  practice  which 
was  not  contested  before  the  courts  until  1870,  when  it  was  emphat- 
ically interdicted ; 2  (4)  that  to  some  extent  before,  but  more 
especially  after,  1870  the  requirement  was  in  large  part  avoided  by 
the  practice  of  refined  classification  under  which  cities  were  in  plain 
fact  extensively  interfered  with;  and  (5)  that  it  was  not  until 
fifty  years  after  the  constitution  went  into  effect  that  this  practice 
was  declared  unconstitutional  and  the  cities  of  Ohio  actually  real- 
ized the  full  measure  of  the  kind  of  protection  that  such  a  require- 
ment ought  to  afford. 


Prohibition  against  Special  Legislation  for  Cities  in  the  Indiana 
Constitution  of  1851 

As  in  the  case  of  the  Ohio  mid-century  convention,  one  of  the 
avowed  objects  of  calling  the  Indiana  convention  of  1850-51  was 

1  Every  city  of  Ohio  was  governed  under  this  code  until  the  home  rule  amendment 
of  1912  went  into  operation.     Infra,  Ch.  XVIII. 

2  It  should  be  noted  that  most  of  the  special  laws  that  were  enacted  prior  to  1870 
were  laws  which  conferred  powers  and  usually  financial  powers.     It  can  scarcely 
be  said,  therefore,  that  they  were  acts  of  interference,  the  probability  being  that 
they  were  in  most  instances  sought  by  the  corporate  authorities  of  specific  cities. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       75 

that  it  should  devise  a  means  of  putting  an  end  to  the  flood  of  local 
and  special  laws  which  the  legislature  annually  poured  out  upon 
the  state.  The  recorded  debates  of  the  convention  do  not  dis- 
close, however,  that  the  evil  aimed  at  was  an  evil  in  respect  to  which 
the  cities  of  the  state  had  just  reason  to  complain.  Indeed  almost 
nothing  was  said  upon  the  floor  of  the  convention  about  the  case 
of  cities  as  such.1  In  the  end  the  convention  adopted  a  section 
prohibiting  seventeen  specific  varieties  of  local  and  special  laws.2 
As  this  section  was"7 originally  adopted  it  provided  that  special 
laws  should  not  be  enacted  "for  the  creation  of  private  corpora- 
tions" nor  "in  relation  to  municipal  corporations,  such  as  congres- 
sional townships,  school  districts,  cities,  boroughs,  towns,  and  vil- 
lages." 3  But  in  the  final  revision  of  the  constitution  both  of  these 
provisions  were  omitted,  and  there  was  written  into  the  article 
dealing  with  banking  corporations  the  following  comprehensive 
section:  "Corporations,  other  than  banking,  shall  not  be  created 
by  special  act,  but  may  be  formed  under  general  laws."  4  In  addi- 
tion to  this  prohibition  the  Indiana  constitution  of  1851  required 
that  the  legislature  should  enact  general  laws  in  all  cases  "where 
a  general  law  can  be  made  applicable."  5  Furthermore,  the  sched- 
ule attached  to  the  constitution  declared  somewhat  vaguely  — 
and,  it  would  seem,  utterly  unnecessarily  —  that  "all  acts  of  in- 
corporation for  municipal  purposes  shall  continue  in  force  under 
this  constitution  until  such  time  as  the  general  assembly  shall, 
in  its  discretion,  modify  or  repeal  the  same."  6 

Upon  the  basis  of  these  three  provisions  of  the  constitution  the 
power  of  the  legislature  over  the  corporate  charters  of  the  cities  of 
Indiana  had  to  be  determined.  With  such  uncertainty,  however, 
did  these  provisions  give  expression  to  the  intent  of  the  convention 
— if,  indeed,  definiteness  of  intent  upon  this  subject  maybe  imputed 
to  that  body  —  that  the  subsequent  curious  rulings  of  the  courts 
are  scarcely  a  matter  for  remark. 

Debates  and  Proceedings,  II,  pp.  1422,  1765-1773. 

Art.  IV,  sec.  22. 

Debates  and  Proceedings,  II,  p.  1768. 

Art.  XI,  sec.  13. 

Art.  IV,  sec.  23  •  Clause  4. 


76   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

In  1852,  immediately  upon  the  heels  of  the  effectuation  of  the 
constitution,  the  legislature  disclosed  its  apparent  interpretation 
of  the  constitutional  requirements  in  question  by  the  enactment 
of  a  general  law  for  the  incorporation  of  cities.1  Under  the  terms 
of  this  statute  new  towns  and  cities  might  become  incorporated. 
Existing  towns  and  cities  might  voluntarily  abandon  their  special 
charters  and  organize  under  the  general  law.  Within  a  few  years 
many  existing  cities  of  the  state  accepted  this  general  charter  law, 
which  was  in  the  course  of  the  next  twenty  years  frequently  amended 
and  revised  without  impairment  to  its  generality.2  But  the  practice 
of  special  legislation  for  cities  was  not  during  these  years  wholly 
abandoned  by  the  Indiana  legislature.  In  the  first  place,  it  seems 
that  from  the  very  beginning  the  legislature  never  regarded  the 
prohibition  against  the  "creation"  of  corporations  by  special  act 
as  operating  to  prevent  the  amendment  by  such  means  of  the 
charters  of  existing  corporations,  private  or  public.3  The  first 
law  of  this  character  which  was  made  applicable  to  a  municipal 
corporation  appears  to  have  been  enacted  in  1853  4  and  the  second 
in  1858.5  After  1865  the  number  of  such  laws  increased; 6  but 
the  number  never  became  very  large  for  the  obvious  reason  that 
most  of  the  cities  of  the  state  had  of  their  own  accord  become 
organized  under  the  general  charter  law.  The  legislature  evi- 
dently did  not  hold  the  view  that  it  was  competent  to  amend  this 
general  law  in  its  application  to  a  specific  city. 

It  was  not  until  1869  that  the  validity  of  a  special  law  of  this 
kind  was  drawn  into  question  before  the  supreme  court.  The 

1  Act  of  June  18,  1852. 

2  In  1850  the  most  important  cities  of  Indiana  were  as  follows :    New  Albany, 
with  8181  inhabitants;     Indianapolis,   with  8091;      Madison,   with  8012;     La- 
fayette, with  6129 ;    Fort    Wayne,    with  4282 ;    Terre    Haute,    with  4051 ;    and 
Evansville,  with  3235. 

8  In  1898  the  court  declared:  "The  legislature,  commencing  with  its  first  ses- 
sion of  1852,  after  the  constitution  took  effect,  again  and  again,  by  special  acts, 
enlarged  the  powers  and  privileges  of  such  [preexisting]  corporations."  City  of 
Indianapolis  v.  Navin,  151  Ind.  139. 

4  Laws  of  Ind.,  1853,  p.  119.  6  Laws  of  Ind.,  1858,  p.  116. 

«  Laws  of  Ind.,  1865,  pp.  81,  82,  113;  Sp.  Sess.,  1865,  pp.  76,  83,  85,  97,  102; 
1867,  pp.  121,  123;  1873,  pp.  116,  149;  1875,  pp.  62,  70;  1879,  p.  98;  1881,  pp. 
22-28;  etc. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       77 

authority  of  the  legislature  to  enact  such  a  law  was  upheld  upon  the 
ground  that  under  the  schedule  the  legislature  was  empowered  to 
"modify  or  repeal"  any  municipal  charter  that  existed  in  1851. L 
It  may  be  observed  that  the  provision  of  the  schedule  was  wholly 
negative  as  to  whether  such  modification  or  repeal  might  be  made 
by  special  law  or  only  by  general  law ;  but  there  was  apparently 
no  doubt  in  the  mind  of  the  court  that  it  might  be  effected  by  a 
special  enactment.  This  doctrine  was  reaffirmed  in  a  number  of 
cases  thereafter,2  and  thus  for  certain  cities  of  the  state  whatever 
barrier  it  may  have  been  thought  that  the  constitution  interposed 
between  the  city  and  the  special  act  was  completely  swept 
away. 

Another  class  of  special  acts  relating  to  cities  which  the  legisla- 
ture evidently  considered  itself  competent  to  enact  consisted  of 
curative  statutes.3  Special  laws  curing  defects  or  irregularities  in 
such  matters  as  the  issue  of  bonds  or  the  annexation  of  territory 
were  enacted  both  for  cities  under  special  charters  and  for  those 
under  the  general  law.  What  may  have  been  the  constitutional 
theory  of  the  legislature  as  to  its  power  to  pass  such  laws  does 
not  appear.  Nor  does  it  appear  that  the  courts  were  ever  asked 
to  pass  upon  their  validity. 

In  1871  the  policy  of  classification  was  first  introduced  into  the 
general  laws  of  Indiana  relating  to  cities.4  No  general  classes 
were  established,  but  the  practice  of  creating  a  special  class  for  the 
application  of  this  or  that  so-called  general  law  became  thereafter 
increasingly  common.5  The  supreme  court  of  the  state  attributed 

1  Longworth's  Executors  v.  Common  Council  of  the  City  of  Evansville,  32  Ind. 
322.     1869. 

2  City  of  Evansville  v.  Bayard,  39  Ind.  450  (1872)  ;  Eichels  v.  Evansville  Street 
Ry.  Co.,  78  Ind.  261  (1881) ;  Chamberlain  u.  City  of  Evansville,  77  Ind.  542  (1881) ; 
Warren  v.  City  of  Evansville,  106  Ind.  104  (1885) ;    Corporation  of  Bluffton  «. 
Studabaker,  106  Ind.  129  (1885) ;    City  of  Evansville  v.  Summers,  108  Ind.  189 
(1886)  ;   Wiley  ».  Corporation  of  Bluffton,  111  Ind.  152  (1887). 

3  Laws  of  Ind.  1871,  p.  8;   1875,  pp.  92,  151-161 ;    1877,  pp.  77,  78,  79;   1879, 
pp.  16,  17,  18,  99,  100,  101 ;  etc. 

*  Laws  of  Ind.,  1871,  p.  20. 

6  Laws  of  Ind.,  1873,  p.  64  ;  1879,  pp.  85,  87,  88 ;  1881,  pp.  12,  14 ;  1883,  pp.  89, 
103 ;  1885,  p.  13 ;  1887,  p.  15 ;  1889,  pp.  32,  222,  247,  432 ;  etc. 


78   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

the  inauguration  of  this  practice  to  the  early  case  of  Thomas  v.  The 
Board,1  where  the  rule  was  announced  that  whether  a  general  law 
could,  within  the  meaning  of  the  constitution,  "be  made  appli- 
cable" to  any  particular  subject  of  legislation  was  a  judicial  and  not 
a  legislative  question.2  In  this,  however,  the  court  was  manifestly 
in  error,  for  the  Thomas  case  had  been  completely  overruled  by  the 
case  of  Gentile  v.  The  State,3  which  was  decided  two  years  before 
the  legislature  first  adopted  the  policy  of  classifying  cities.  The 
greater  probability  is  that  this  plan  was  borrowed  from  Ohio, 
where  its  "effectiveness"  had  for  some  years  received  practical 
proving. 

At  the  time,  however,  it  was  certainly  the  view  of  the  Indiana 
court  that  the  Gentile  case  had  removed  the  only  obstacle  of  the 
constitution  that  had  stood  in  the  way  of  special  laws  applicable 
to  cities.  Indeed  as  late  as  1895  the  court  took  occasion  to  re- 
buke the  legislature  for  its  stupidity  and  to  upbraid  it  for  its  lack 
of  candor  in  adopting  the  silly  method  of  subterfuge  which  found 
expression  in  the  enactment  of  laws  applicable  to  thinly  disguised 
"classes"  of  cities.4  It  was  baldly  declared  that  an  act  of  1891 
(which  was  not,  however,  under  review)  which  applied  to  "all 
cities  having  a  population  of  more  than  100,000  inhabitants" 
would  have  been  just  as  valid  under  the  constitution  if  it  had 
been  made  to  apply  specifically  to  Indianapolis  by  name  "be- 
cause it  is  a  subject  on  which  the  applicability  of  a  general 
law  [since  the .  overturning  of  the  rule  of  the  Thomas  case]  has 
been  left  by  the  constitution  to  the  exclusive  judgment  of  the 
legislature." 

Three  years  later,  however,  the  opinion  expressed  in  this  dictum 
was  somewhat  modified  by  recurrence  to  the  clause  prohibiting  the 
creation  of  corporations  by  special  act.  It  was  held,  nevertheless, 
that  an  act  imposing  a  three-cent  fare  upon  street  railways  in  cities 
of  over  100,000  inhabitants  was  not  unconstitutional  even  though 

>  5  Ind.  4.     1854. 

2  As  to  the  court's  view  of  the  effect  of  this  decision  upon  the  subsequent  legis- 
lative practice  of  classification,  see  Mode  v.  Beasley,  143  Ind.  306.     1895. 
8  29  Ind.  409.     1868. 
4  Mode  v.  Beasley,  143  Ind.  306.     1895. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       79 

special  in  character,1  the  decision  being  based  upon  the  ground 
that  the  act  in  question  did  not  "create"  a  corporation  nor  " confer 
any  new  corporate  power "  but  merely  " regulated"  an  existing 
corporation  —  here  the  railway  company,  although  the  city's 
power  was  also  affected  by  the  act.  It  is  highly  significant  that 
in  this  case  both  the  city  and  the  street  railway  company  were  cor- 
porations organized  under  general  laws  passed  subsequent  to  the 
adoption  of  the  constitution.2 

In  the  case  of  Longview  v.  City  of  Crawfordsville,3  decided  in 
1904,  the  court  finally  brought  the  provisions  of  the  constitution 
of  1851  upon  this  subject  to  a  state  of  equilibrium.  In  that  case 
a  law  providing  for  the  extension  of  the  boundaries  of  cities  having 
a  population  "of  between  six  and  seven  thousand"  inhabitants 
was  declared  void  on  the  ground  that  it  was  a  special  act  inhibited 
by  the  constitution.  In  effect  the  dictum  of  1895  was  completely 
repudiated.  The  court  refused  to  sustain  the  validity  of  this 
special  city  law  and  to  defer  to  the  judgment  of  the  legislature 
that  a  general  law  could  not  be  made  applicable.  It  pointed  to 
the  fact  that  the  constitution  also  prohibited  the  "creation"  of 
any  corporation  —  municipal  or  otherwise  —  by  special  act.  It 
was  still  declared  that  the  legislature  might  by  special  enactment 
"regulate"  the  exercise  of  a  power  already  conferred  upon  a  cor- 
poration, either  public  or  private,  which  was  organized  under 
general  laws ;  but  it  was  the  view  of  the  court  that  an  act  providing 
for  the  annexation  of  a  town  to  a  city  amounted  to  the  "creation" 
of  a  new  corporation  within  the  meaning  of  the  constitution  be- 
cause it  conferred  a  new  power  or  at  least  extended  existing  power 
over  new  territory.  The  court  had  repeatedly  declared  that  "the 
constitution  cannot  be  evaded  by  the  creation  of  a  corporation  by 
general  act  and  the  subsequent  grant  to  it  of  extraordinary  powers 

1  City  of  Indianapolis  u.  Navin,  151  Ind.  139  (1898) ;   reaffirmed  in  In  re  Bank 
of  Commerce,  153  Ind.  460  (1899) ;   Smith  v.  Indianapolis  Street  R.  Co.,  158  Ind. 
425  (1901). 

2  On  petition  for  a  rehearing  of  this  case,  the  Indiana  court  mildly  reproved  the 
United  States  Circuit  Court  which,  in  the  case  of  Central  Trust  Co.  of  New  York  v. 
Citizens'  St.  R.  Co.,  80  Fed.  Rep.  218  (1897),  reached  a  different  conclusion  upon 
the  same  point  of  law.  3  164  Ind.  117.     1904. 


80   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

by  special  act ;  "  1  but  this  was  the  first  case  in  which  this  some- 
what vague  and  uncertain  line  of  distinction  was  applied  to  defeat 
a  legislative  act.2 

It  was  thus  that  the  intent  of  the  Indiana  convention  of  1851  in 
regard  to  special  legislation  for  cities  was  read  into  the  provisions 
which  they  drafted  more  than  fifty  years  after  the  constitution 
went  into  operation.  Meantime  special  legislation  had  been  prac- 
tised by  the  law-making  body  upon  an  extensive  scale  (1)  by  the 

r  direct  amendment  of  early  and  unsuperseded  special  municipal 
charters,  (2)  by  the  passage  of  curative  statutes,  and  (3)  by  the 

\  enactment  of  laws  that  were  general  in  no  respect  save  as  to  their 
form.  Even  at  the  present  time  it  would  seem  that  the  Indiana 

/  legislature  is  entirely  competent  to  enact  laws  applicable  to  specific 
cities  provided  such  laws  are,  in  the  judicial  view,  merely  "regula- 
tory" in  character  —  whatever  that  may  mean. 

The  decision  of  the  court  in  the  Longview  case  doubtless  con- 
vinced the  legislature  that  many,  if  not  most,  of  the  colorable 
"  general "  city  laws  which  had  been  enacted  through  a  period  of 
many  years  would  be  declared  void  if  contested  before  the  courts. 
In  1905,  therefore,  the  legislature  enacted  a  general  mandatory 
charter  for  each  of  five  general  classes  of  cities.3  Since  that  date 
the  special  act  has  largely  disappeared  in  Indiana. 4 

In  the  light  of  these  facts  it  can  scarcely  be  said  that  the  Indiana 
convention  of  1851  consciously  attempted  to  establish  within  the 
constitution  a  guarantee  to  cities  of  freedom  from  legislative  inter- 
ference in  their  affairs.  The  probability  is  that  the  idea  of  protec- 
tion for  cities  as  such  never  occurred  to  any  member  of  that  con- 
vention. And  in  any  case,  whatever  may  have  been  the  purpose 
of  the  convention,  it  is  clear  that  the  courts  not  only  found  great 
difficulty  in  discovering  their  intent  but  also,  even  in  ultimate  in- 

1  Smith  v.  Indianapolis  Street  R.  Co.,  158  Ind.  425  (1901).     See  also  City  of 
Indianapolis  v.  Navin,  151  Ind.  139  (1898),  and  In  re  Bank  of  Commerce,  153  Ind. 
460  (1899). 

2  The  Bank  of  Commerce  case,  supra,  differed  only  in  that  it  held  void  a  law  which 
extended  in  perpetuity  the  special  charters  of  certain  private  corporations  created 
before  1851. 

*  Acts  of  1905,  ch.  129.  4  Indianapolis  is  the  only  city  of  the  first  class. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       81 

terpretation,  did  not  construe  the  provisions  in  such  wise  as  to 
prohibit  special  legislation  for  cities  in  its  entirety. 

Prohibition  against  Special  Legislation  for  Cities  in  the  Iowa  Con- 
stitution of  1857 

The  Iowa  constitution  of  1857  declared  that  the  legislature  should 
pass  no  special  law  "for  the  incorporation  of  cities  and  towns," 
this  being  one  of  six  enumerated  subjects  of  special  legislation  which 
were  proscribed.1  General  laws  were  also  required  "in  all  other 
cases  where  a  general  law  can  be  made  applicable."  2  While  the 
phraseology  employed  was  slightly  different  from  both  the  Ohio 
and  the  Indiana  provisions,  there  appears  to  be  little  doubt  that 
that  idea  was  borrowed  from  the  provisions  of  one  or  both  of 
these  other  states,  and  that  it  was  incorporated  with  no  thought 
whatever  of  affording  a  definite  protection  to  cities  against  legis- 
lative interference  in  their  affairs.  According  to  the  federal  cen- 
sus of  1850,  the  largest  city  of  Iowa  in  that  year  was  Burlington, 
with  the  metropolitan  population  of  4082  souls.  The  provision 
relating  to  cities  was  adopted  without  any  debate  upon  the  floor 
of  the  convention,  so  far  at  least  as  the  printed  debates  and  pro- 
ceedings disclose. 

It  was  early  decided  by  the  supreme  court  of  Iowa  that  the  con- 
stitution of  1857  prohibited  not  only  the  first  incorporation  of  any 
town  or  city  by  special  act  but  also  the  amendment  of  any  existing 
charter  by  such  an  act.3  This  opinion  was  founded  upon  a  very 
liberal  interpretation  of  the  meaning  of  the  word  "incorporation"  as 
well  as  upon  the  view  (supported  by  the  doctrine  of  the  Indiana  case 
of  Thomas  v.  The  Board,4  which  was  later  overruled  in  that  state) 
that  the  courts  alone  were  vested  with  power  to  determine  when  a 
general  law  could  be  made  applicable  to  a  specific  subject  of  legis- 
lation. However  open  to  question  the  soundness  of  these  views 

1  Art.  Ill,  sec.  30.  *  Ibid. 

3  Ex  parte  Fritz,  9  la.  30  (1859) ;  Davis  &  Bro.  v.  Woolnough,  9  la.  104  (1859)  ; 
Hetherington  v.  Bissell,  10  la.  145  (1859). 

4  Supra,  78. 


82   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

may  be,  the  legislature  was  obviously  directed  at  once  into  a  straight 
and  narrow  path.  The  principal  questions  which  were  thereafter 
presented  to  the  courts  of  Iowa  were  questions  in  respect  to  the 
constitutionality  of  the  schemes  of  classification  employed  by  the 
legislature. 

In  respect  to  the  evolution  of  the  home  rule  idea  in  the  United 
States  there  is  one  point  of  considerable  interest  connected  with  the 
first  policy  in  the  enactment  of  laws  for  cities  which  was  inaugu- 
rated by  the  legislature  of  Iowa  under  the  constitution  of  1857  and 
which  was  commented  upon  in  an  early  decision  of  the  supreme 
court  of  that  state.  In  1858  the  legislature,  following  the  Ohio 
precedent  of  1852,  enacted  a  comprehensive  general  law  for  the 
government  of  towns  and  of  cities  of  two  classes.1  This  law, 
however,  unlike  the  Ohio  law  which  was  mandatory  upon  all 
existing  cities,  applied  with  one  minor  but  highly  significant  ex- 
ception only  to  municipalities  that  might  thereafter  become  incor- 
porated. Neither  was  provision  made,  as  in  the  Indiana  law  of 
1852,  whereby  existing  cities  might  surrender  their  special  charters 
and  become  organized  under  the  law.  By  this  law,  however, 
unlimited  power  was  conferred  upon  such  cities  to  mend  their 
charters  without  legislative  intervention?  It  was  evidently  the  view 
of  the  legislature  that  the  constitutional  requirement  of  general 
legislation  had,  to  a  very  considerable  extent,  ushered  in  an  era  of 

1  Laws  of  Iowa,  1858,  ch.  157. 

2  Sec.  Ill  read  as  follows:    "The  charter  or  act  of  incorporation  of  any  city  or 
town  in  this  state  may  be  amended  in  manner  following,  to  wit :  When  one-fourth 
the  qualified  voters  of  said  city  or  town  as  shown  by  the  vote  at  the  charter  election 
immediately  previous,  petition  the  legislative  body  of  said  city  or  town  for  the 
amendment  of  the  charter  or  act  of  incorporation,  the  said  legislative  body  shall 
immediately  propose  sections  amendatory  of  said  charter  or  act  of  incorporation  as 
petitioned  for,  and  submit  them  to  the  qualified  voters  of  said  city  or  town  at  the 
first  ensuing  charter  election.     At  least  ten  days  before  said  election,  the  mayor 
or  chief  officer  of  said  city  or  town  shall  issue  his  proclamation  setting  forth  the 
nature  and  character  of  such  amendment,  and  the  said  proclamation  shall  be  im- 
mediately published  in  some  newspaper  published  in  said  town,  and  be  posted  up  in 
some  conspicuous  place  in  the  office  of  said  mayor  or  chief  officer.  .  .  .     On  the  day 
specified,  the  said  amendment  shall  be  submitted  to  the  qualified  voters  of  the 
corporation  for  adoption  or  rejection,  and  the  form  of  the  ballot  shall  be,  'for  the 
amendment,'  or  'against  the  amendment.'" 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       83 

municipal  home  rule.     Moreover,  this  view  was  apparently  shared 
by  the  courts ;  for  in  the  case  of  Ex  parte  Pritz  1  it  was  declared : 

We  think  the  intention  was  to  require  the  legislature  to  pass  general 
laws  upon  this  subject,  under  which  the  towns  and  cities  of  the  State 
could  frame  their  articles  of  incorporation  and  amend  them  at  any  time, 
in  any  manner  not  inconsistent  with  the  constitution,  or  the  general  laws, 
and  it  was  designed  to  leave  these  matters  with  the  people  composing  the 
corporation,  instead  of  consuming  the  time  of  the  legislature  in  the  con- 
sideration of  local  and  special  laws. 

In  another  early  case  the  court  remarked : 2 

If  the  design  of  the  constitution  was  to  take  from  the  general  assembly 
the  power  to  engage  in  special  legislation,  and  to  leave  to  cities  and  towns 
the  control  of  their  own  municipal  affairs,  subject  to  the  constitution  and 
the  general  laws  of  the  state,  then  it  would  be  violated  in  its  letter  and 
its  spirit  as  much  by  repealing  as  by  amending  such  special  acts.  It  is 
as  practicable  for  the  legislature  to  pass  a  general  law  under  which  all 
cities  and  towns  may  proceed  to  repeal  their  previous  charters  and  sub- 
stitute others  of  their  own  formation  and  creation,  as  to  give  the  general 
power  to  amend,  change,  or  modify  such  charters. 

It  should  be  observed  that  this  Iowa  general  law  of  1858  created 
a  somewhat  curious  situation.  It  provided  in  great  elaboration 
and  detail  for  the  government  of  towns  and  of  cities  which  might 
in  the  future  become  incorporated.  Presumably  the  legislature 
did  not  intend  that  such  a  town  or  city,  having  once  become  in- 
corporated, might  at  pleasure  amend  the  general  law  as  applicable 
to  itself.  By  this  law  the  charter  of  such  a  city  was  fixed.  The 
home  rule  right,  therefore,  was  extended  only  to  cities  already  in- 
corporated under  special  charters  antedating  the  constitution. 
The  curiousness  of  this  situation  was  only  accentuated  when  the 
legislature  four  years  later  followed  the  Indiana  precedent  of  per- 
mitting cities  under  special  charters  to  abandon  such  charters  by 
their  own  action  and  become  organized  under  the  general  law.3 

1  9  la.  30.     1859. 

2  Davis  &  Bro.  v.  Woolnough,  9  la.  104  (1859).     See  also  Hetherington  v.  Bissell, 
10  la.  145  (1859),  where  the  court  asserted  that  "the  inhabitants  of  the  city  are 
as  competent  to  amend  the  charter  in  this  respect  [i.e.  as  to  the  establishment  of  a 
police  court]  as  in  any  other." 

3  Laws  of  Iowa  (Ex.  Seas.),  1862,  p.  23. 


84   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

A  city  which  took  this  action  apparently  lost  the  right  to  amend 
its  charter,  which  was  thereafter  the  general  law  itself.  In  the 
course  of  time  most  of  the  cities  of  Iowa  that  existed  in  1857  sur- 
rendered their  special  charters  and  accepted  the  general  law.  A 
few  cities  of  the  state,  however,  still  retain  their  ancient  charters.1 
The  provision  of  the  law  conferring  upon  such  cities  the  power  to 
amend  their  own  charters  has  never  been  repealed.2 

It  is  probable  that  the  power  to  amend  their  own  charters  was 
never  extensively  exercised  by  the  cities  of  Iowa  because  of  the 
cumbersomeness  of  the  amending  process  provided.  An  amend- 
ment could  be  initiated  only  by  a  petition  of  one-fourth  of  the  mu- 
nicipal voters  —  a  requirement  that  rendered  the  entire  scheme 
well-nigh  unworkable.  The  power  did  not  lie  completely  dormant, 
however,  and  the  competence  of  the  legislature  to  confer  such 
power  was  specifically  and  unhesitatingly  sustained  by  the  supreme 
court  of  the  state.3  A  discussion  of  the  soundness  of  this  doctrine 
of  law  would  be  inappropriate  at  this  point.  It  is  sufficient  merely 
to  remark  that  the  weight  of  authority  is  overwhelmingly  opposed 
to  such  doctrine,  the  theory  being  based  upon  the  rule  that  the 
legislature  may  not  delegate  legislative  powers. 

It  is  of  interest  and  importance  to  note,  however,  that  both  the 
legislature  and  the  courts  of  Iowa  originally  construed  the  prohibi- 
tion against  special  legislation  for  cities  as  a  constitutional  grant  to 
the  legislature  of  power  to  delegate  the  charter-making  authority. 
On  the  other  hand,  in  enacting  general  laws  for  cities  (a  few  of 
these  being  mandatory  upon  the  special  charter  cities,  but  most 
of  them  being  applicable  only  to  the  cities  which  accepted  the 
general  law  in  its  entirety)  the  Iowa  legislature  in  practice  soon 
abandoned  the  earlier  view  that  was  taken,  although  the  provision 
in  question  was  never  repealed.  The  cities  of  Iowa  have  in  fact 
had  their  governments  determined  by  the  legislature  in  quite  as 
much  fullness  as  the  cities  of  other  states  and  in  more  fullness  than 

1  In  1914,  Dubuque,  Davenport,  Muscatine,  Glenwood,  and  Wapello  were  still 
operating  under  early  special  charters.     Iowa  Official  Register,  1913-14,  p.  707. 

2  Iowa  Code  of  1897,  sec.  1047.     The  section  is  incorporated  under  a  chapter 
containing  provisions  that  relate  only  to  cities  under  special  charters. 

s  Von  Phul  v.  Hammer,  29  la.  222.    1870. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       85 

the  cities  of  a  few  states.  The  home  rule  right  as  embodied  in 
a  statutory  enactment  in  that  state  has,  therefore,  been  little  more 
than  a  legal  theory. 

Prohibition  against  Special  Legislation  in  the  Kansas  Constitution 

of  1859 

In  the  year  1859  Kansas  was  ushered  into  the  Union  with  a  con- 
stitution that  contained  provisions  l  in  regard  to  legislation  for 
cities  that  were  practically  identical  with  those  of  the  Ohio  consti- 
tution of  1851.  The  largest  city  of  Kansas  in  1860  was  Leaven- 
worth  with  a  population  of  7429,  while  Atchison,  with  2616  inhab- 
itants, was  the  second  city  of  the  state.  It  is  not  reasonable  to" 
suppose  that  these  cities  had  endured  great  "tyranny"  under  the 
special  acts  of  the  territorial  legislature.  The  probability  is  that 
the  provisions  in  question  were  copied  out  of  the  Ohio  constitution 
without  much,  if  any,  serious  consideration. 

This  probability  is  strengthened  by  the  fact  that  several  succes- 
sive legislatures  which  assembled  under  the  constitution  paid  no 
attention  whatever  to  these  provisions.  They  proceeded  to  enact 
special  laws  for  cities  without  the  slightest  apparent  hesitation.2 
In  1866  it  occurred  to  certain  property  owners  who  objected  to  a 
street  improvement  in  the  city  of  Atchison  to  contest  the  validity 
of  an  act  passed  in  January  of  that  year  which  amended  the  city 
charter  "  in  respect  to  the  mode  of  collecting  assessments  for  im- 
proving streets  so  as  to  change  the  rate  and  proportionate  bearing 
upon  the  property."  The  law  in  question  was  promptly  declared 
to  be  void.3  While  the  court,  hi  its  effort  to  show  the  intent  of 
those  who  drafted  the  constitution,  could  not  point  to  much  be- 
yond the  unequivocal  phraseology  of  the  provisions  in  question, 
it  is  interesting  to  note  that  in  the  judicial  view  this  limitation  upon 
the  power  of  the  legislature  over  cities  had  been  introduced  in  be- 
half of  the  rights  of  private  property  under  municipal  charters 

1  Art.  XII,  sees.  1,  5. 

2  Laws  of  Kansas,  1861,  pp.  25,  168,  174, 175  ;  1862,  pp.  405,  406,  407, 408 ;  1863, 
pp.  39,  40 ;    1864,  pp.  140,  141,  142 ;    1865,  pp.  92,  109. 

3  Atchison  ».  Bartholow,  4  Kans.  124.     1866. 


86   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

and  not  at  all  with  the  object  of  protecting  cities  themselves  against 
legislative  interference  —  a  view  which,  it  will  be  recalled,  was 
identical  with  that  urged  before  the  New  York  convention  of  1846 
in  support  of  the  proposal  of  requiring  general  legislation  for  cities.1 

Referring  to  the  consequences  of  the  decision  in  this  case,  the 
opinion  recited : 

The  court  is  aware  of  many  of  the  disastrous  consequences  which  must 
necessarily  follow  this  decision ;  and  if  in  conscience  it  could  have  done  so, 
would  gladly  have  avoided  them.  It  had  but  a  single  duty  to  perform. 
It  has  endeavored  thoroughly  to  understand  the  subject,  and  has  acted 
in  accordance  with  its  convictions.  If  the  conclusion  at  which  it  has  ar- 
rived be  erroneous,  the  regrets  of  the  sufferers  will  not  be  keener  than  those 
of  the  members  of  this  tribunal.  But  if  the  decision  is  correct,  it  is  better 
that  it  be  now  declared,  than  that  the  blow  should  fall  with  greater  effect 
hereafter. 

Acting  upon  this  decision  the  Kansas  legislature  created  two 
classes  of  cities  and  enacted  mandatory  charters  for  each  class.2  A 
year  later  a  third  class  was  established  and  an  optional  charter  law 
was  made  applicable  to  the  class.3  But  in  spite  of  the  emphatic 
decision  of  the  court  in  1866,  the  practice  of  enacting  special  laws 
for  municipal  corporations  in  Kansas  appears  by  no  means  to  have 
been  brought  to  a  sudden  and  effectual  termination.  Indeed  this 
practice  seems  to  have  continued  for  many  years  thereafter,4 
although  the  validity  of  only  a  few  of  these  laws  was  contested 
before  the  courts,  with  the  invariable  result  of  their  being  declared 
void  wherever  contest  was  raised.5  The  enactment  of  such  laws 

1  Supra,  67. 

2  Kansas  General  Statutes,  1868,  chs.  18  and  19.     Cities  of  more  than  15,000 
inhabitants  were  formed  into  the  first  class,  and  cities  of  from  2,000  to  15,000  inhab- 
itants were  constituted  cities  of  the  second  class. 

3  This  class  included  all  cities  of  from  800  to  2000  inhabitants.     Laws  of  Kansas, 
1869,  pp.  80-101. 

*  Laws  of  Kansas,  1868,  pp.  69,  93,  97,  99,  101 ;  1869,  pp.  149,  231,  258,  259, 
260,  261 ;  1870,  pp.  54,  73,  114,  151,  221,  254,  255,  256,  261 ;  1871,  pp.  142,  195; 
1872,  pp.  13,  14,  25,  33,  135,  146,  292,  395,  415;  1873,  pp.  18,  24,  69,  109,  136,  181, 
197;  1874,  pp.  3,  4,  153,  158,  214,  215,  216;  1877,  pp.  5,  8,  10,  98,  134,  256,  260, 
266 ;  etc. 

5  City  of  Wyandotte  v.  Wood,  5  Kans.  603  (1870) ;  National  Bank  of  Cleveland 
v.  City  of  lola,  9  Kans.  689  (1873),  decided  by  the  U.  S.  Circuit  Court. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       87 

seems  to  have  disappeared  from  the  practice  of  the  Kansas  legis- 
lature only  by  a  very  gradual  process. 

Provisions  of  Nevada  (1864),  Nebraska  (1867),  Arkansas  (1868), 
Tennessee  (1870),  and  Virginia  (1870)  Constitutions 

Nevada  came  into  the  Union  under  well-known  exceptional  cir- 
cumstances with  a  constitution  which  provided  first,  that  "the 
legislature  shall  pass  no  special  act  in  any  matter  relating  to  cor- 
porate powers  except  for  municipal  purposes ;  "  l  and  second, 
that  "the  legislature  shall  provide  for  the  organization  of  cities 
and  towns  by  general  laws  and  restrict  their  financial  powers."  2 
So  far  as  the  record  of  debates  and  proceedings  discloses  these 
provisions  were  adopted  without  debate  by  the  convention  that 
framed  the  constitution.  They  were  evidently  taken  over  from 
the  constitutions  of  other  states,  and  so  little  care  was  observed  in 
the  borrowing  process  that  they  were,  it  will  be  observed,  not  made 
to  harmonize  at  all.  The  supreme  court  of  the  state  early  held 
that  these  provisions  did  not  operate  to  prohibit  special  legislation 
for  cities.3  In  effect,  therefore,  the  provision  in  respect  to  general 
laws  was  declared  to  be  merely  directory. 

The  Nebraska  constitution  of  1867  provided  that  the  legislature 
should  "pass  no  special  act  conferring  corporate  powers"  and 
should  "provide  for  the  organization  of  cities  and  incorporated 
villages  by  general  laws  and  restrict  their  financial  powers"  4  — 
provisions  which  were  obviously  copied  verbatim  from  the  Ohio 
constitution  of  1851, 5  as  was  frankly  admitted  by  the  Nebraska 
supreme  court.6  According  to  the  national  census  of  1860  Ne- 
braska had  not  a  single  city  of  more  than  two  thousand  inhabit- 
ants;7 and  the  practice  of  the  legislature  under  this  "exotic" 

1  Constitution  of  1864,  Art.  VIII,  sec.  1. 

2  Art.  VIII,  sec.  8. 

3  City  of  Virginia  v.  The  Chollar-Potosi  G.  &  S.  M.  Co.,  2  Nev.  609.     1866. 

4  Art.  VIII,  sees.  1,  4.     Practically  identical  provisions  were  incorporated  into 
the  constitution  of  1875,  Art.  Ill,  sec.  15. 

5  Supra,  70. 

6  State  ex  rel.  Jones  v.  Graham,  16  Neb.  74.     1884. 

7  Nebraska  City  had  a  population  of  1922 ;   Omaha,  of  1883. 


88   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

requirement  of  the  constitution  is,  therefore,  of  scarcely  sufficient 
import  to  necessitate  a  detailed  survey.  Suffice  it  to  say  that 
when  in  1884  the  supreme  court  of  the  state  was  called  upon  to 
pronounce  upon  the  validity  of  a  law  applicable  to  "cities  of  the 
second  class  having  more  than  ten  thousand  inhabitants" 
Lincoln  being  the  only  such  city  —  it  was  declared  broadly  that 
the  expedient  of  classifying  cities  for  purposes  of  legislation  had 
been  borrowed  from  Ohio  and  that  classification  might  "in  the  dis- 
cretion of  the  legislature  be  extended  to  any  number  of  classes  or 
sub-classes."  l  Faithful  to  this  liberality  of  view  the  legislature 
has  ever  since  kept  Omaha,  South  Omaha,  and  Lincoln  —  the  only 
sizable  cities  of  the  state  —  in  "classes"  that  enjoy  the  distinc- 
tion at  least  of  the  largest  possible  exclusiveness. 

The  reconstruction  convention  of  Arkansas,  which  met  in  1868, 
wrote  into  the  constitution  of  that  state  provisions  requiring  the 
enactment  of  general  laws  conferring  "corporate  powers"  and  "for 
the  organization  of  cities."  2  These  provisions,  once  again,  were 
precisely  identical  with  those  of  the  Ohio  constitution.3  The  con- 
vention provided  a  committee  on  cities ; 4  but  the  provisions  in  ques- 
tion were  proposed  by  the  committee  on  the  legislative  depart- 
ment 5  and  were  adopted,  as  was  most  of  the  constitution  except 
the  parts  that  related  directly  or  indirectly  to  the  status  of  negroes, 
with  practically  no  debate.  They  were  evidently  taken  over  bod- 
ily from  the  Ohio  constitution  without  much,  if  any,  well-defined 
purpose. 

The  first  legislature  which  met  under  the  constitution  hastily 
adopted  an  ill-considered  general  law  "for  the  incorporation  of 
cities  and  towns,"  which  law  could  be  accepted  by  any  city  of  its 
own  volition.6  A  year  later  the  legislature  met  the  requirement  of 
the  constitution  with  boldness.  Another  act7  "to  regulate  the 
incorporation  and  organization  of  cities  and  towns"  was  passed; 

1  State  ex  rd.  Jones  v.  Graham,  16  Neb.  74.     1884. 

8  Art.  V,  sees.  48,  49.     Repeated  in  the  constitution  of  1874,  Art.  XII,  sees.  2,  3. 

3  Supra,  70. 

4  Debates  and  Proceedings  of  the  Arkansas  Convention  of  1868,  pp.  60,  208,  471. 
•  Ibid.,  p.  208. 

«  Act  of  July  23,  1868.  7  Act  of  April  9,  1869. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION      89 

and  this  statute  not  only  repealed  the  general  law  of  the  previous 
year  but  also  wiped  out  all  special  charters  then  in  force.  Uniform 
organization  was  thus  introduced  at  one  stroke  into  the  government 
of  all  the  cities  of  the  two  general  classes  established  by  the  law. 
It  may  be  said  further  that  the  Arkansas  legislature  has  never  mate- 
rially departed  from  the  policy  thus  early  established.1  Under 
such  legislative  practice  it  is  not  surprising  that  the  courts  have 
had  little  occasion  to  declare  the  meaning  of  the  constitutional 
provisions  in  question.2 

The  Tennessee  constitution  of  1870  3  contained  the  following 
provision : 

No  corporation  shall  be  created,  or  its  powers  increased  or  diminished, 
by  special  laws ;  but  the  general  assembly  shall  provide  by  general  laws, 
for  the  organization  of  all  corporations  hereafter  created,  which  laws  may, 
at  any  time,  be  altered  or  repealed ;  and  no  such  alteration  or  repeal  shall 
interfere  with  or  divest  rights  which  have  become  vested. 

It  appears  that  at  the  time  of  the  adoption  of  this  provision,  the 
Tennessee  convention  voted  down  a  proposal  to  limit  its  operation 
to  private  corporations.4  The  legislature,  however,  did  not  act 
upon  the  view  that  this  clause  imposed  an  absolute  prohibition  on 
special  legislation  for  cities. 5  In  1879  the  supreme  court  of  the  state 
conceded  somewhat  reluctantly  that  public  corporations  were  in- 
cluded within  the  restriction  noted ; 6  but  four  years  later  this 
ruling  was  overturned,  it  being  held  that  by  reason  of  the  context 
the  word  " corporation "  should  be  "restricted  to  that  class  of  cor- 

1  The  optional  commission  government  law  of  1913  created  a  new  class  consisting 
of  cities  having  a  population  of  from  18,000  to  40,000  inhabitants. 

2  See  State  v.  Jennings,  27  Ark.  419  (1872)  and  Babcock  v.  City  of  Helena,  34  Ark. 
499  (1879).     In  the  latter  case,  it  was  said:    "This  clause  clearly  indicates  an  in- 
tention of  the  legislative  body  to  produce  a  strict  uniformity  in  the  organization  and 
government  of  all  the  cities  and  towns  in  the  state,  each  after  its  class,  but  there  is 
no  warrant  for  going  further,  and  presuming  that  the  legislature  [by  the  general 
law  of  1869]  meant  to  take  away  any  special  powers,  theretofore  granted  them  by 
special  acts,  and  not  affecting  their  organization  or  government." 

3  Art.  XI,  sec.  8. 

4  Luehrman  v.  Taxing  District,  2  Lea  (Tenn.)  425,  431.     1879. 
8  State  v.  Wilson,  12  Lea  (Tenn.)  246,  259.     1883. 

6  Luehrman  v.  Taxing  District,  supra. 


90   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

porations  which  seems  to  have  been  alone  contemplated  by  the 
provisions."  1  While  there  has  been  in  Tennessee  a  considerable 
amount  of  legislation  made  applicable  to  transparently  disguised 
"classes"  of  cities,  there  has  been  no  palpable  reason  whatever, 
under  this  interpretation  of  the  constitution  by  the  courts,  for  the 
employment  of  this  all  too  common  artifice.  Moreover,  special 
legislation  without  any  disguise  at  all  has  been  frequently  resorted 
to.  In  fact  no  policy  of  any  kind  has  been  consistently  pursued 
by  the  legislature  of  this  state.  Certainly  the  cities  of  Tennessee 
have  enjoyed  the  protection  arising  out  of  the  guarantee  of  general 
legislation  neither  in  legal  theory  nor  in  fact. 

The  Virginia  constitution  of  1870,  which  was  drafted  in  1867-68, 
embodied  provisions  of  a  very  elaborate  character  in  respect  to 
the  government  of  the  cities.2  Indeed  certain  important  elements 
of  all  city  charters  were  written  in  detail  into  the  fundamental 
law.  It  was  provided  in  addition  that "  general  laws  shall  be  passed 
for  the  organization  and  government  of  cities,  and  no  special  act 
shall  be  passed  except  in  cases  where,  in  the  judgment  of  the  gen- 
eral assembly,  the  object  of  such  act  cannot  be  attained  by  general 
laws. " 3  This  provision  was  doubtless  phrased  after  a  study  of  the 
provisions  upon  this  subject  that  were  found  in  certain  other  con- 
stitutions that  we  have  noted.  The  debates  of  the  Virginia  con- 
vention of  1867  were  never  completely  published,4  and  it  is  in 
consequence  impossible  to  discover  what,  if  any,  precise  purpose 
may  have  been  in  the  minds  of  those  who  framed  the  provision  in 
question.  It  is  manifest,  however,  that  it  was  not  borrowed  without 
some  careful  consideration.  Its  meaning  was  unmistakable.  The 
legislature  was  directed  to  inaugurate  a  policy  of  general  legislation 
for  cities,  but  at  the  same  time  it  was  permitted  to  exercise  an  un- 
trammeled  discretion  in  deciding  in  every  instance  whether  a  special 
law  was  or  was  not  necessary.  In  other  words,  only  a  moral  obli- 
gation was  imposed  upon  the  law-making  body  to  provide  for  the 

1  State  v.  Wilson,  supra,  89,  n.  5.  Reaffirmed  in  Ballentine  v.  Mayor  and  Alder- 
men of  Pulaski,  15  Lea  (Tenn.)  633.  1885.  2  Art.  VI,  sees.  14-21. 

3  Art.  VI,  sec.  20. 

4  Only  the  first  volume  was  published. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       91 

government  of  cities  by  general  laws.     The  provision  was  merely 
directory. 

It  cannot  be  said  that  the  legislature  of  Virginia  ever  gave  any 
heed  to  the  constitutional  direction  in  this  matter.  The  first 
legislature  that  assembled  under  the  constitution  enacted  several 
general  city  laws  of  minor  significance ; x  but  a  large  number  of 
laws  were  passed  in  application  to  specific  cities  and  towns.2  Pre- 
cisely the  same  policy  was  followed  at  the  next  session  of  the  legis- 
lature.3 In  fact  the  legislature  made  no  change  whatever  in  its 
previous  policy  of  dealing  with  municipal  corporations  through  the 
medium  of  special  laws.  Nor  does  it  appear  that  its  practice  in 
this  regard  was  ever  commented  upon  by  the  courts.4 

From  the  above  history  of  constitutional  provisions  requiring 
general  legislation  for  cities  it  seems  reasonable  to  conclude  that 
in  not  one  of  the  states  already  mentioned  were  such  provisions 
written  into  the  constitution  with  the  specific  end  in  view  of  elim- 
inating a  legislative  abuse  under  which  cities  as  such  had  suffered. 
In  their  inception  such  provisions  were  not  put  forward  as  a  salu- 
tary guarantee  to  cities  of  protection  against  legislative  "interfer- 
ence "  with  and  "  domination  "  over  their  affairs.  They  were  not 
looked  upon  as  being  in  the  nature  of  a  constitutional  axe  laid  to  the 
root  of  a  legislative  evil  —  that  evil  being  the  tyranny  of  the  legisla- 
ture over  the  " rights"  of  cities.  In  most,  if  not  all,  of  these  states 
there  had  in  fact  been  no  such  "crying"  evil.  Whatever  "protec- 
tion" cities  came  to  enjoy  under  these  requirements  was  an  incident 

1  Acts  of  Va.f  1869-70,  pp.  118,  149,  447. 

2  Ibid.,  pp.  120-146,  148,  149,  154-161,  162,  324-328,  344,  353,  365,  457-462, 
497-500,  519-526,  527,  569. 

3  Acts  of  Va.,  1870-71,  pp.  4,  37,  45,  59,  124-133,  134,  146,  147,  160,  175,  187- 
204,  229-241,  247,  248,  252,  255,  258,  261,  265,  271,  305,  326,  329,  370,  387,  388,  389. 

4  In  Ould  &   Carrington  v.   City  of   Richmond,   23   Gratt.  (Va.)  464   (1873), 
and  in  Humphreys  v.  City  of  Norfolk,  25  Gratt.  (Va.)  97  (1874),  the  court  had  under 
review  provisions  of  completely  new  charters  which  had  since  the  adoption  of  the 
constitution  been  enacted  for  the  two  most  important  cities  of  the  state ;    but  no 
reference  was  made  to  the  fact  that  the  legislature  had,  in  passing  these  charter 
laws,  ignored  the  directory  provision  of  the  constitution  on  the  subject  of  general 
legislation  for  cities. 


92   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

rather  than  the  direct  fruition  of  definite  design.  Moreover,  the 
evidence  seems  convincing  that  in  a  number  of  these  states  such 
provisions  were  incorporated  into  constitutions  by  a  process  of 
somewhat  blind  adaptation,  with  little  if  any  conscious  purpose. 

Prohibition  against  Special  Legislation  in  the  Illinois  Constitution 

of  1870    ' 

It  was  in  the  Illinois  convention  of  1869-70  that  the  proposal  of 
requiring  general  legislation  for  cities  appears  to  have  been  offered 
for  the  first  time  in  specific  behalfjrf  the  " rights"  of  cities.1  One 
member  indeed  declared  upon  the  floor  of  that  convention  that  he 
saw  no  necessity  for  such  a  provision  because  he  had  "heard  no 
complaint  at  all  of  abuses  in  either  the  granting  or  the  amendment 
of  the  charters  of  municipal  corporations";2  but  this  view  was 
contradicted  by  other  delegates  and  especially  by  delegates  from 
the  city  of  Chicago.  Specific  instances  of  such  abuses  were  cited, 
and  although  these  instances  were  neither  numerous  nor  particu- 
larly outrageous  as  compared  with  what  many  cities  of  the  country 
have  been  compelled  at  times  to  endure  from  the  hands  of  legis- 
latures, there  is  nevertheless  no  question  whatever  that  the  makers 
of  the  Illinois  constitution  of  1870,  in  adopting  the  provisions  which 
they  devised  upon  this  subject,  had  definitely  in  view  the  object 
of  extending  a  degree  of  protection  to  the  cities  of  the  state  against 
legislative  encroachment. 

On  the  other  hand,  it  is  not  easy  to  determine  just  what  degree  of 
protection  these  constitution-makers  conceived  themselves  to  be 
creating.3  There  is  considerable  evidence  to  show  that  it  was  the 
view  of  some  members  at  least  —  and  perhaps  of  the  entire  con- 
vention —  that  the  adoption  of  a  prohibition  on  special  legislation 
for  cities  would  result  in  the  enactment  of  a  general  law,  similar 

1  Debates  and  Proceedings  of  the  Constitutional  Convention  of  Illinois,  1869-70, 
pp.  591-608.  2  Ibid.,  p.  591. 

3  It  is  difficult,  for  example,  to  follow  what  many  of  the  members  were  driving 
at  in  the  proposals  that  were  made  for  coupling  this  requirement  of  general  legisla- 
tion with  a  requirement  for  a  referendum  to  the  voters  of  each  city  on  charter  amend- 
ments. An  earnest  fight  was  made  for  such  a  provision. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       93 

to  the  Iowa  statute  noted  above,1  under  which  cities   would  be 
vested  with  the  power  to  make  and  amend  their  own  charters. 

As  the  constitution  came  from  the  convention  it  held  the  pro- 
vision that  "no  corporation  shall  be  created  by  special  laws,  or  its 
charter  extended,  changed,  or  amended,  .  .  .  but  the  general 
assembly  shall  provide,  by  general  laws,  for  the  organization  of 
all  corporations  hereafter  created."  2  And  as  to  municipal  corpora- 
tions, it  was  further  and  more  specifically  provided  that  the  general 
assembly  should  not  pass  any  local  or  special  law,  among  other 
enumerated  subjects,  for  "incorporating  cities,  towns,  or  villages,, 
or  changing  or  amending  the  charter  of  any  town,  city  or  village."  3i 
This  was  the  least  uncertain  provision  upon  this  subject  which  had 
up  to  the  time  of  its  writing  found  its  way  into  any  constitution. 
In  fact  there  could  be  little  if  any  doubt  as  to  its  meaning,  as  also 
there  was  little  if  any  doubt  as  to  the  intention  of  those  who 
drafted  it.  In  comparatively  few  cases,  therefore,  have  the  courts 
of  Illinois  been  called  upon  to  explain  and  apply  the  provision  in 
question. 

It  may  be  noted  in  passing  that  the  Illinois  legislature  did  not 
meet  this  restriction  upon  its  power  over  cities  by  conferring  upon 
such  corporations  the  authority  to  amend  their  own  charters.  A 
general  municipal  charter  law  was  enacted  in  1872.  Under  this 
law  no  general  classes  of  cities  were  created.4  Communities  seek- 
ing initial  incorporation  were  compelled  to  organize  under  its  pro- 
visions. Existing  corporations  were  allowed  to  do  so  at  their  own 
option.  With  the  exception  of  a  number  of  insignificant  munic- 
ipalities all  the  cities  of  the  state  availed  themselves  of  this  privi- 
lege.5 Chicago  6  and  Aurora  have  for  many  years  found  the  pri- 

1  Supra,  82.     This  provision  was  read  with  high  approval  before  the  convention. 
Ibid.,  p.  592. 

2  Art.  XI,  sec.  1. 

3  Art.  IV,  sec.  22. 

4  Some  classification  has  been  introduced  into  this  general  code. 

6  Some  of  these  cities  have,  within  recent  years,  adopted  the  amendment  to  the 
general  city  law  which,  enacted  in  1910,  provided  for  the  commission  form  of  gov- 
ernment. But  many  of  the  provisions  of  the  earlier  general  law  are  still  in  force 
in  such  cities. 

6  Chicago  adopted  the  general  law  in  1875. 


94   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

mary  source  of  their  governments  in  precisely  the  same  general 
statutes.  In  one  respect,  however,  the  Illinois  legislature  did  con- 
fer unusual  discretionary  powers  upon  the  cities  that  elected  to 
organize  under  the  general  law  —  a  fact  which  doubtless  accounts 
for  the  early  and  widespread  local  acceptance  of  the  law.  While 
this  law  is  in  some  aspects  elaborate  and  detailed  in  charter,  it 
does  not  establish  a  complete  and  rigid  governmental  organization. 
A  council  and  a  few  specified  administrative  officers  are  obligatory. 
Certain  other  designated  officers  may  be  provided  by  ordinance 
at  the  "discretion"  of  the  council ; 1  but  additional  and  unenumer- 
ated  offices  may  be  established  and  their  powers  and  duties  pre- 
scribed in  like  manner.2  Under  the  authority  thus  bestowed  by 
the  legislature  a  considerable  part  of  the  departmental  organiza- 
tion of  the  government  of  Chicago  rests  upon  ordinances  rather 
than  upon  the  detailed  requirements  of  the  law. 

The  competence  of  the  legislature  to  confer  such  liberal  powers 
upon  cities  has  apparently  never  been  directly  questioned  in  the 
courts  of  Illinois,  although  in  at  least  one  case  views  were  expressed 
which  seem  to  be  wholly  out  of  harmony  with  the  legislative  prac- 
tice in  this  regard.3  That  practice,  however,  is  a  fact  of  more  than 
forty  years'  standing ;  and  it  is  scarcely  to  be  presumed  that  the 
courts,  if  called  upon,  would  at  this  late  day  venture  to  undermine 
its  foundation. 

Further  Development  of  Prohibitions  against  Special  Legislation  for 

Cities 

It  seems  unnecessary  to  pursue  in  further  detail  the  development 
of  constitutional  provisions  that  imposed  upon  state  legislatures  a 
requirement  of  general  legislation  for  cities.  Enough  has  been  said 
to  indicate  that  Illinois,  in  1870,  appears  to  have  been  the  first 
state  in  which  such  a  provision  was  adopted  with  the  deliberate 
purpose  of  affording  a  definite  measure  of  security  to  the  city  as 

1  Laws  of  Illinois  Relating  to  Cities,  Villages,  and  Incorporated  Towns,  compiled 
1902,  sec.  81. 

2  Ibid.,  sec.  82. 

3  People  ex  rel.  Miller  v.  Cooper,  83  111.  585.     1876. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       95 

such  against  legislative  intermeddling  with  its  affairs.  Suffice 
it  to  add  that  since  1870  this  method  of  affording  "protection" 
to  cities  has  been  introduced  into  many  other  constitutions.  Pro- 
visions which  either  unmistakably  prohibit  or  have  been  construed 
by  the  courts  to  prohibit  all  special  acts  relating  to  cities  are  now 
found  in  the  constitutions  of  twenty-nine  states.1  Three  more 
constitutions  prohibit  special  legislation  for  the  smaller  cities  of 
the  state ; 2  and  three  other  constitutions,  while  not  prohibiting 
the  special  act,  impose  a  check  upon  the  legislature  in  its  enactment.3 

lSQhio,  1851,  supra,  70,  infra,  Ch.  XVII;  Indiana,  1851  (which  does  not  com- 
pletely prohibit,  but  perhaps  ought  to  be  included  in  this  list),  supra,  75  ;  Iowa,  1857, 
supra,  81 ;  Kansas,  1859,  supra,  85 ;  Nebraska,  1867,  supra,  87,  infra,  Ch.  XVII; 
Arkansas,  1868,  supra,  88 ;  Illinois,  1870,  supra,  93 ;  Pennsylvania,  1873,  Art.  Ill, 
sec.  7;  New  Jersey,  amendment  of  1875,  Art.  IV,  sec.  11 ;  Missouri,  1875,  Art.  IV, 
sec.  53,  Art.  IX,  sec.  7,  infra,  Chs.  VI,  VII ;  -Colorado,  1876,  Art.  XIV,  sees.  13,  14, 
infra,  Ch.  XIV ; "California,  1879,  Art.  XI,  sec.  6,  infra,  Chs.  VII-XI  f  Washington, 

1889,  Art.  II,  sec.  28,  Art.  XI,  sec.    10,   infra,   Ch.   XII;    North  Dakota,    1889, 
Art.  II,  sec.  69,  Art.  VI,  sec.  130 ;   Wyoming,  1889,  Art.  Ill,  sec.  27,  Art.  XIII, 
sec.  1 ;   South  Dakota,  1889,  Art.  Ill,  sec.  23,   Art.  X,  sec.  1 ;   Idaho,  1889  (which 
did  not  completely  prohibit  —  see  Butler  v.  Lewiston,  11  Id.  393  —  but  perhaps 
ought  to  be  included  in  this  list),  Art.  Ill,  sec.  19,    Art.   XII,  sec.  1 ;    Kentucky, 

1890,  sees.  59,  156,  160,  166  ;  Mississippi,  1890,  Art.  IV,  sec.  88  ;  Wisconsin,  amend- 
ment of  1892,  Art.  IV,  sec.  31 ;    Minnesota,  amendment  of  1892,  Art.  IV,  sec.  33, 
infra,  Ch.  XIII ;    South  Carolina,  Art.  Ill,  sec.  34,   Art.  VIII,  sees.    1,  2 ;    Utah, 
1895,  Art.  VI,  sec.  26,  Art,  XI,  sec.  5  {^Oregon,  amendment  of  1906,  Art.  XI,  sec.  2, 
infra,  Ch.  XVI;   Alabama,  1901,  Art.  IV,  sec.  104; -Oklahoma,  1907,  Art.  V,  sec. 
46,    Art.  XVIII,  sees.  1,  2,    infra,  Ch.  XV;    Mkhigan,  1908,  Art.  VIII,  sec.  20. 
infra,  Ch.  XVI ;   New  Mexico,  1912,  Art.  IV,  sec.  24;"Arizona,  1912,  Art.  IV,  div. 
2,  sec.  19,  Art.  XIII,  sec.  1,  infra,  Ch.  XV. 

J  West  Virginia,  1872,  Art.  VI,  sec.  39  (cities  of  less  than  2000)  ;  Texas,  1876, 
Art.  XI,  sec.  5  (cities  of  less  than  10,000),  infra,  Ch.  XVII ;  Louisiana,  1898,  Art.  48 
(cities  of  less  than  2500). 

3  In  Georgia,  1877,  there  must  be  publicity  in  the  city  affected,  Art.  Ill,  sec.  7, 
par.  16.  (A  similar  provision  in  Louisiana,  1898,  sec.  50,  is  construed  in  practice 
to  apply  to  acts  affecting  cities  of  more  than  2000  inhabitants.  Like  provisions 
are  found  in  the  constitutions  of  Pennsylvania,  1873,  Art.  Ill,  sec.  8 ;  New  Jersey, 
amendment  of  1875,  Art.  IV,  sec.  7 ;  and  Missouri,  1875,  Art.  IV,  sec.  54 ;  but  in 
these  constitutions  the  significance  of  such  a  provision,  as  applied  at  least  to  legis- 
lation for  cities,  is  not  clear  in  view  of  the  fact  that  special  legislation  of  this  char- 
acter is  entirely  prohibited.)  In  New  York,  1894,  Art.  XII,  sec.  2,  the  city  is  given 
a  suspensive  veto  on  every  special  law  that  affects  it.  See  infra,  101.  In  Virginia, 
1902,  Art.  IV,  sec.  51,  Art.  VIII,  sec.  117,  unusual  legislative  procedure  and  an 
extraordinary  majority  vote  is  required  for  the  enactment  of  a  special  law  relating 
to  any  city. 


V 


96      DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

It  would  be  a  gross  mistake  to  assume  that  all  of  these  provisions 
have  found  their  way  into  state  constitutions  as  a  result  of  actual 
legislative  abuses  that  were  sought  to  be  proscribed.  In  a  number 
of  instances  such  provisions  were  doubtless  copied  with  more  or 
less  blindness  from  the  constitutions  of  other  states,  or  at  least  with 
no  more  specific  design  than  to  forestall  in  the  particular  state 
the  rise  of  an  evil  which  was  known  to  have  been  encountered  else- 
where. On  the  other  hand,  such  provisions  were  certainly  in  a 
number  of  states,  as  in  Illinois  in  1870,  incorporated  for  the  express 
purpose  of  giving  the  city  a  degree  of  freedom  under  the  constitu- 
tion from  legislative  domination. 

The  Nature  of  the  "Protection"  afforded  to  Cities  by  Prohibitions 
against  Special  Legislation 

It  seems  pertinent  to  inquire  whether  the  requirement  of  general 
legislation  for  cities  was  devised  to  establish  anything  that  might 
with  propriety  be  called  a  home  rule  right.  The  Iowa  supreme 
court,  as  we  have  seen,  evidently  thought  at  one  time  that  the  con- 
stitutional provision  in  that  state  did  create  such  a  right ;  but  the 
ultimate  practice  of  the  legislature,  which  was  never  denied  by 
the  courts,  showed  conclusively  that  the  scope  of  that  right  de- 
pended entirely  upon  the  legislative  will.  The  Illinois  legislature, 
as  well  as  the  legislatures  of  one  or  two  other  states,1  conferred  upon 
cities  under  the  general  law  somewhat  liberal  powers  over  their 
own  organization ;  but  it  is  obvious  that  such  powers  were  refer- 
able to  the  law  and  not  to  the  constitution.  Indeed  it  is  manifest 
at  a  glance  that,  even  where  the  legislature  fulfills  a  constitutional 
requirement  of  general  legislation  for  cities  not  only  as  to  the 
.letter  but  also  as  to  the  full  spirit  of  such  requirement,  there  is  im- 
I  posed  upon  the  law-makers  no  necessity  whatever  of  granting  to 
cities  any  considerable  measure  of  home  rule.  The  general  law 
may  provide  —  and  let  it  be  remarked  usually  has  provided  —  an 

1  For  example,  Arkansas,  in  the  general  law  applicable  to  the  two  classes  of 
cities ;  Pennsylvania,  in  the  general  law  applicable  to  cities  of  the  third  class ; 
Montana,  in  the  general  law  applicable  to  the  two  classes  of  cities. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       97 

elaborate  and  complete  organization  of  municipal  government. 
It  may  regulate  in  superabundant  detail  many  minute  operations 
of  such  government.     Where  a  law  is  made  uniformly  applicable 
to  cities  of  widely  varying  populations  it  is  true  that  the  legisla- 
ture must  of  practical  necessity  eliminate  some  of  these  details. 
It  cannot,  for  example,  regulate  such  matters  as  the  salaries  of 
numerous  officers  or  the  number  of  members  of  the  police  force, 
as  it  could  in  special  charters.     But  aside  from  a  few  details  of i 
this  character  a  city  may  be  put  in  a  straight-jacket  of  generali 
law  that  is  very  nearly  if  not  quite  as  restrictive  as  any  special' 
charter  could  be. 

The  only  right,  then,  that  can  accrue  directly  from  the  constitu- 
tional requirement  of  general  legislation  is  the  right  to  be  free  f rom 
legislative  assaults  that  are  directed  against  a  specific  city  for  ul- 
terior, sinister,  or  ill-considered  purposes.  There  is  no  question 
that  assaults  for  such  purposes  are  rendered  practically  impossible 
where  the  laws  for  the  governance  of  cities  are  general  in  fact  as 
well  as  in  form.  A  legislature  will  seldom  if  ever  have  such  pur- 
poses toward  all  the  cities  of  a  state ;  and  few  legislatures  would 
be  so  high-handed  as  to  execute  their  ill-begotten  designs  upon 
numerous  cities  with  the  end  in  view  of  reaching  only  one  of  the 
number. 

It  is  open  to  question,  nevertheless,  whether  constitutional  im-j 
munity  from  attacks  of  this  character  may  properly  be  referred  to  § 
as  a  "  right  "  of  municipal  home  rule.     It  is  certainly  not  a  right  of 
self-government,  for,  as  has  already  been  said,  general  laws  may 
offer  to  the  city  an  exceedingly  narrow  latitude  of  action.     On  the 
other  hand,  such  a  requirement  clearly  establishes  an  element  of 
protection  for  the  city  against  a  particular  kind  of  legislative  en- 
croachment.    It  is  almost  precisely  comparable  to  the  constitu-  j 
tional  guarantee  to  the  private  person  or  corporation  of  the  equal 
protection  of  the  laws.     So  far  as  this  latter  provision  of  the  con-  , 
stitution  alone  is  concerned,  the  legislature  may  encroach  to  what-  ' 
ever  extent  it  chooses  upon  the  liberties  of  the  individual  provided 
there  is  no  inequality  of  encroachment.     The  " right"  of  the  in- 
dividual extends  no  farther  than  the  right  not  to  be  discriminated 


98   DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

against.  And  so  with  the  city  under  the  guarantee  of  general  legis- 
lation. The  "  right "  of  the  city  is  certainly  no  more  than  the  right 
to  be  on  an  exact  equality  under  the  law  with  other  cities  of  the 
state.  If  the  right  of  the  private  person  to  the  equal  protection  of 
the  laws  may  properly  be  referred  to  —  as  it  commonly  is  —  as 
a  right  of  individual  liberty  under  the  constitution,  so  with  like 
propriety  the  right  of  the  city  to  have  its  government  established 
under  general  laws  may  be  described  as  a  right  of  municipal  liberty. 
But  liberty  imports  self-rule,  whether  of  the  individual  or  of  the 
city ;  and  the  idea  of  non-discrimination  has  no  necessary  connection 
with  the  concept  of  self-rule  that  is  embodied  in  the  term  liberty. 
In  the  strict  logic  of  terms,  therefore,  it  is  quite  as  inappropriate 
to  include  the  guarantee  of  equal  protection  of  the  laws  among  the 
rights  of  the  individual's  liberty  under  our  constitutional  system  as 
it  is  to  include  the  city's  guarantee  of  general  legislation  among  the 
rights  of  municipal  home  rule. 

But  this  is  merely  a  terminological  quibble.  The  question  of  im- 
portance is  as  to  the  practical  results  of  the  guarantee  of  general 
legislation  for  cities  upon  the  relation  between  the  city  and  the 
state  legislature.  Some  of  these  results  have  already  been  indi- 
cated in  our  outline  of  historical  beginnings.  It  seems  unnecessary 
to  detail  here  the  full  measure  of  results  in  every  state.  The  prac- 
tices of  legislatures  under  this  requirement  have  been  exceedingly 
various.  In  application  to  these  diversified  practices  the  courts 
have  been  called  upon  to  create  rules  of  interpretation  in  a  formid- 
able and  ever  increasing  number  of  cases.  To  present  an  adequate 
conception  of  concrete  results  would  require  a  fine  writing  of  the 
history  of  legislative  practices  in  many  states  and  a  following  of 
the  devious  windings  of  the  courts  through  many  decisions.  The 
purposes  of  our  study  seem  to  obligate  nothing  more  than  a  brief 
summary. 

Speaking  broadly,  then,  it  may  be  said  that  the  requirement  of 
/general  legislation  has  been  largely  a  failure.     Paradoxical  as  it 
•  may  seem,  it  has  failed  in  many  instances  to  produce  general  legis- 
lation at  all.     This  has  resulted  chiefly  from  the  legislative  practice 
of  classifying  cities.     Legislatures  have  not  hesitated,  when  they 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       99 

chose  to  do  so,  to  enact  innumerable  laws  for  the  application  of 
each  of  which  a  so-called  "class"  of  cities  was  created,  although 
in  plain  point  of  fact  only  a  single  city  was  embraced  in  such 
class.  Special  classification  of  this  kind  is  only  a  ludicrous  euphe- 
mism for  special  legislation.  Even  where  legislatures  have  estab- 
lished general  classes  of  cities  and  have  in  their  subsequent  enact- 
ments pursued  a  fairly  consistent  policy  of  passing  laws  applicable 
to  these  fixed  classes,  they  have  not  refrained  from  placing  this  or 
that  city  in  a  class  by  itself,  and  the  more  important  a  city,  the  more 
usually  has  this  distinction  been  conferred  upon  it.  The  "  general- 
ity" of  a  law  that  is  applicable  to  a  class  of  cities  embracing  only 
one  city  is  about  as  obvious  a  reality  as  the  fourth  dimension  in 
pure  science.  Nor  have  the  courts,  when  once  the  right  to  classify 
has  been  conceded,  evolved  any  principles  that  could  be  invoked 
to  prevent  a  designing  legislature  from  casting  a  more  or  less 
solemn  guarantee  of  the  constitution  into  the  discard.1 

Moreover,  the  requirement  of  general  legislation  has  been  evaded 
by  other,  though  less  usual;  subterfuges.  It  has  been  evaded  by 
the  enactment  of  optional  statutes,  available  to  any  city  or  any 
city  of  a  class,  but  in  fact  passed  at  the  behest  of  a  particular  city 
and  with  no  thought  of  its  being  adopted  by  any  other.  It  has  been 
evaded  by  the  passage  of  laws  which  were  general  in  form  but  which 
could  not,  by  reason  of  their  subject-matter,  apply  to  any  but  the 
specific  city  for  which  they  were  intended.  It  has  been  evaded  in 
a  few  cases  by  the  establishment  over  a  city  of  a  new  and  inde-  v 
pendent  corporation  charged  with  the  performance  of  certain  func- 
tions commonly  given  over  to  cities.  And  even  when  there  has 
been  no  attempt  to  circumvent  the  letter  and  spirit  of  this  restric- 
tion its  net  result,  for  reasons  that  it  is  unnecessary  to  detail,  has 
often  been  not  the  establishment  of  a  large  degree  of  uniformity 
in  the  government  of  cities  but  the  introduction  into  the  body  of 
statutes  relating  to  these  governments  of  an  amount  of  confusion, 

1  It  should  be  remarked  that  the  constitutional  provisions  of  Arkansas,  Arizona, 
California,  Colorado,  Idaho,  Missouri,  Oklahoma,  South  Carolina,  South  Dakota, 
Utah,  Washington,  and  Wyoming  expressly  recognize  the  authority  of  the  legisla- 
ture to  classify  cities  for  purposes  of  general  legislation.  In  Kentucky,  Minnesota, 
and  New  York,  classes  of  cities  are  established  by  the  constitution  itself. 


100     DEVELOPMENT  OF  THE   HOME  RULE  PROBLEM 

uncertainty,  and  chaos  that  has  been  as  inexcusable  as  it  has  been 
harassing. 

It  is  easy,  however,  to  magnify  the  failure  of  the  requirement 
of  general  legislation  for  cities.  The  number  of  instances  in  which 
it  has  in  practical  effect  been  read  out  of  constitutions  looms  large 
in  the  survey  of  its  history.  Such  instances  are  much  more  than 
occasional  exceptions.  But  the  more  or  less  happy  experience  of 
a  large  company  of  cities  —  and  especially  of  small  cities  —  which 
have  found  and  still  find  themselves  organized  under  laws  that  are 
applicable  to  others  than  themselves  is  apt  to  be  overlooked. 
These  cities  enjoy  no  mean  degree  of  protection  from  legislative 
indiscretions  —  to  put  it  mildly  —  that  might  under  other  circum- 
stances be  directed  against  them  individually.  They  are  released 
from  the  annoyance  of  a  constant  tinkering  with  their  charters. 
They  do  not  have  to  maintain  vigilant  lobbies  at  the  state  capital. 
If  their  governments  as  established  under  these  general  laws  lack 
principle,  symmetry,  and  simplicity,  if  they  pinch  at  this  point  and 
hang  loose  at  that,  they  have  at  least  the  virtue  of  considerable 
permanence  and  stability. 

Apart,  however,  from  the  fact  that  the  requirement  of  general 
legislation  for  cities  has  so  frequently  been  wholly  nullified  in  prac- 
tice, such  a  requirement,  as  has  already  been  indicated,  obviously 
falls  short  of  satisfying  in  full  the  demands  of  an  adequate  relation 
in  law  between  the  city  and  the  state.  It  may  indeed,  operating 
at  its  best,  afford  protection  to  the  city  against  exploitation  and 
despoilment  at  the  hands  of  a  conscienceless  or  indifferent  legis- 
lature ;  but  it  does  not  inherently  grant  to  the  city  any  measure  of 

'  opportunity  for  self-development.  Had  the  original  view  of  the 
Iowa  supreme  court  as  to  the  logic  of  such  a  requirement 1  been 
adopted  by  state  legislatures  generally,  and  had  it  been  judicially 
sustained  as  a  valid  exercise  of  legislative  power,  it  is  entirely  con- 
ceivable that  the  vexatious  question  of  home  rule  would  long  since 
have  ceased  to  occupy  a  place  in  the  front  rank  of  state  political 
problems.  Cities  would  not  only  have  been  emancipated  from 

•  special  interference  but  would  also  have  enjoyed  large  opportunity 

1  Supra,  83. 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION      101 

to  expand  their  functions  and  to  determine  their  organic  life  in 
accordance  with  local  ideals.  But  the  fact  remains  that  the  general 
laws  relating  to  cities  have  seldom  offered  any  such  opportunity. 
The  requirement  of  general  legislation  has  been  in  a  measure  de- 
structive of  a  legislative  abuse.  To  that  extent  it  has  afforded  t 
protection  to  cities.  But  on  the  constructive  side  such  a  require- 
ment contains  practically  no  element  of  liberation.  Indeed  in  this 
aspect  of  the  matter  the  requirement  has  of  necessity  operated  to 
forge  the  grip  of  statutory  restrictions  more  tightly  upon  the  city 
than  formerly ;  for  under  general  laws  a  city  seeking  a  change  in 
its  government  has  often  been  compelled  not  only  to  convince  the 
legislature  of  the  wisdom  of  its  proposal  but  also  to  enlist  the  sup- 
port of  other  cities  that  would  be  affected.1 


Special  Legislation  under  the  New  York  Constitution  of  1894 

Mention  should  be  made  in  conclusion  of  the  provision  on  the 
subject  of  cities  that  was  incorporated  into  the  New  York  consti- 
tution of  1894.  The  convention  which  framed  this  fundamental 
law  was  unwilling  wholly  to  prohibit  special  legislation  for  cities. 
Briefly  described,  the  provision2  which  was  adopted  divided  the 
cities  of  the  state  into  three  classes  on  the  basis  of  population  and 
declared  that  laws  "which* relate  to  a  single  city,  or  to  less  than  all 
the  cities  of  a  class,  shall  be  deemed  special  laws."  A  bill  pro- 
posing such  a  law  must,  after  adoption  by  the  legislature,  be  sub- 
mitted to  the  mayor  in  the  case  of  first-class  cities  —  New  York, 
Buffalo,  and  Rochester  —  and  to  the  mayor  and  council  in  the  case 
of  all  other  cities;  and  these  corporate  authorities  are  required, 
after  a  public  hearing,  to  approve  or  reject  the  proposal.  If  re- 
jected, the  bill  may  nevertheless  be  reenacted  by  the  legislature 
without  the  necessity  of  an  extraordinary  majority  vote.  In  other 
words,  every  city  of  the  state  is  given  a  suspensive  veto  upon  special 
laws  relating  to  its  government. 

1  This  fact  unquestionably  accounts  for  the  steadily  increasing  practice  of  enact- 
ing optional  general  laws  relating  to  cities. 

2  Art.  XII,  sec.  2. 


102     DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

This  New  York  provision  defines  a  "  general  city  law  "  as  one 
that  applies  to  all  the  cities  of  a  class  and  a  "  special  city  law  " 
as  one  that  applies  to  less  than  all  the  cities  of  a  class.  The  power 
of  the  legislature  to  enact  general  city  laws  is  complete,  for  such 
laws  need  not  be  submitted  to  the  local  corporate  authorities.  In 
point  of  fact,  however,  the  legislature  has  made  very  little  use  of 
its  authority  to  enact  general  city  laws.  The  most  important  law 
of  this  kind  provided  the  so-called  "  uniform  charter  of  cities  of 
the  second  class" — Albany,  Schenectady,  Syracuse,  Troy,  Utica, 
and  Yonkers.  But  even  in  application  to  these  cities  the  legis- 
lature has  enacted  innumerable  special  city  laws  which  have  had 
the  effect  of  supplementing  or  modifying  this  uniform  charter.  So 
far  as  the  other  cities  of  the  state  are  concerned  their  governments 
have  been  provided  almost  wholly  by  special  laws. 

It  may  be  remarked  in  passing  that  although  the  New  York  courts 
have  decided  a  considerable  number  of  cases  involving  the  distinc- 
tion between  "a  private  or  local  bill"  and  a  " general  law"  as 
these  terms  are  used  in  another  article  of  the  constitution,1  there 
has  been  scarcely  any  judicial  interpretation  of  the  distinction 
between  a  "general  city  law"  and  a  "special  city  law"  as  those 
terms  are  employed  in  the  article  of  the  constitution  relating  to 
cities.  The  constitution  itself,  as  has  been  said,  defines  the  words 
"general"  and  "special"  as  used  in  this  connection;  but  "city 
laws"  are  merely  defined  somewhat  vaguely  as  "laws  relating  to 
the  property,  affairs,  or  government  of  cities." 2  The  absence  of 
judicial  controversy  as  to  whether  this  or  that  law  does  or  does  not 
relate  to  the  property,  affairs,  or  government  of  a  city  has  been 
due  to  the  liberal  practice  pursued  by  the  legislature.  In  order  to 
avoid  doubt  in  respect  to  this  matter  practically  every  bill  of  special 
application,  regardless  of  its  subject-matter,  has  been  submitted  to 
the  city  or  cities  concerned. 

'Art.  Ill,  sec.  18. 

2  When  Art.  Ill,  sec.  18,  is  contrasted  with  Art.  XII,  sec.  2,  it  is  apparent  that 
the  constitution  divides  all  laws  into  two  primary  classes  —  namely,  (1)  "laws" 
and  (2)  "city  laws."  Each  of  these  classes  is  in  turn  divided  into  two  sub-classes; 
the  first  class  embraces  (a)  "  private  or  local  laws  "  and  (6)  "general  laws";  the 
second  class  includes  (a)  "special  city  laws"  and  (6)  "general  city  laws." 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION       103 

/  This  right  of  a  suspensive  veto  has  unquestionably  been  highly 
beneficial  to  the  cities  of  New  York.  Indeed  it  has  in  very  large 
measure,  though  not  entirely,  put  an  end  to  positive  legislative 
interference  in  their  affairs;  for  it  is  wholly  unwarranted  to  de- 
clare that  the  legislature  is  "  interfering  "  with,  or  "  dominating  " 
over,  or  "  imposing  "  itself  upon  a  city  in  the  enactment  of  special 
laws  which  receive  the  endorsement  of  the  local  corporate  authori- 
ties and  which  more  often  than  not  are  enacted  by  the  legislature 
at  the  direct  request  of  such  authorities.  In  the  nineteen  years 
following  the  adoption  of  the  constitution  of  1894,  only  one  hundred 
and  forty-three  special  acts  relating  to  cities  were  passed  over  the 
heads  of  the  cities  affected.  This  was  an  average  of  only  seven  and 
a  half  acts  per  session.  Moreover,  in  later  years  there  has  been  a 
noticeable  annual  diminution  in  the  number  of  laws  thus  enacted. 
The  session  of  1907  —  selected  wholly  at  random  —  may  be  taken 
as  fairly  typical  of  the  legislative  practice  in  this  regard.  During 
that  session,  about  one  hundred  and  sixty  special  laws  relating  to 
cities  were  passed.  Nearly  one-third  of  these  related  exclusively 
to  the  city  of  New  York.  Of  these  one  hundred  and  sixty  acts, 
only  eleven  were  enacted  without  the  approval  of  the  designated 
corporate  authorities  of  the  city  concerned.  Seven  of  these  were 
laws  applicable  to  New  York.  Moreover,  it  is  highly  significant 
that  from  1902  to  1914  there  were  five  hundred  and  twenty-four 
instances  in  which  the  legislature,  by  its  failure  to  reenact  statutes, 
allowed  the  vetoes  of  the  cities  of  the  state  to  stand  effective.1 
It  cannot  perhaps  be  said,  as  Mr.  Seth  Low  has  declared,  that  "it 
is  only  in  matters  of  the  first  consequence  that  the  judgment  of  the 
city  is  ever  overruled  by  the  legislature;"2  yet  the  fact  remains 

1  This  information  was  collected  by  my  student,  Mr.  L.  C.  Carter. 

2  Bryce,  The  American  Commonwealth,  1910  ed.,   I,   p.   664.     A  glance  at  the 
eleven  acts  passed  over  the  heads  of  cities  in  1907  shows  that  the  most  important 
of  them  was  the  law  creating  the  two  public  service  commissions  of  the  state,  one 
of  which  was  given  jurisdiction  in  New  York  City.     Others  of  greater  or  less  impor- 
tance were  :  an  act  creating  a  park  board  for  Utica ;  an  act  authorizing  the  appoint- 
ment of  a  commission  to  inquire  into  the  local  government  of  the  city  of  New  York ; 
and  an  act  amending  an  act  to  provide  for  the  construction  and  maintenance  of  a 
sanitary  trunk  sewer  in  Westchester  County,  which  was  accepted  by  Yonkers  but 
rejected  by  Mt.  Vernon.     All  the  other  acts  in  question  were  distinctly  petty  and 


104     DEVELOPMENT  OF  THE  HOME  RULE  PROBLEM 

that,  as  compared  with  the  practices  of  the  legislature  before  the 
adoption  of  the  constitution  of  1894,  and  in  consideration  of  the 
number,  size,  and  the  importance  from  numerous  political  angles 
of  the  cities  of  the  state  of  New  York,  the  provision  of  the  constitu- 
tion of  1894  has  operated  to  eliminate  in  large  part,  though  not  en- 
tirely, positive  legislative  interference  in  the  affairs  of  cities. 

On  the  other  hand,  this  is  not  to  say  that  the  cities  of  New  York 
have  not  in  most  instances  been  operating  since  1894  under  compli- 
cated schemes  of  government  founded,  in  part  at  least,  and  often 
in  major  part,  upon  innumerable  acts  of  " interference "  prior  to 
that  date.  Nor  is  it  to  say  —  and  this  is  of  far  greater  significance 
—  that  the  legislature  has  not  " interfered"  in  countless  instances 
by  refusing  to  give  to  the  corporate  authorities  of  cities  the  oppor- 
tunity to  decide  for  themselves  upon  changes  of  great  or  minor 
importance  in  the  governments  of  their  cities.  To  put  the  situa- 
tion otherwise,  while  there  has  been  little  positive  imposition  of 
changes  by  the  legislature  against  the  will  of  cities,  there  has  been 
a  considerable  amount  of  legislative  negation  upon  changes  that 
were  sought.1 

overbearing  in  character.  One  of  them  required  New  York  City  to  bear  the  entire 
cost  of  widening  Livingston  Street  in  Brooklyn  in  spite  of  the  fact  that  the  Board  of 
Estimate  and  Apportionment  had  settled  upon  the  plan  of  assessing  costs  upon  the 
owners  of  abutting  property.  Another  amended  the  charter  of  Olean  in  respect  to 
the  matter  of  the  fees  of  the  police  justice.  Another  provided  for  a  recount  of  the 
votes  cast  for  the  office  of  mayor  in  New  York  City  at  an  election  held  on  November 
7,  1905  (nearly  two  years  before  the  enactment  of  the  law),  and  this  was  supple- 
mented by  an  act  imposing  the  cost  of  making  such  recount  upon  the  city.  Another 
established  a  police  pension  fund  in  the  city  of  Poughkeepsie.  Another  directed 
the  Board  of  Estimate  and  Apportionment  of  New  York  to  provide  in  the  hall  of 
records  room  for  the  office  of  the  clerk  of  the  county  of  New  York  and  his  records. 
Still  another  regulated  the  removal  of  dangerously  sick  patients  from  hospitals  in 
the  city  of  New  York. 

1  The  experience  of  the  city  of  Buffalo  under  this  provision  of  the  constitution 
is  eminently  illustrative  of  its  shortcomings  from  the  viewpoint  of  the  city.  In 
1908  active  agitation  began  in  that  city  for  the  establishment  of  the  so-called  com- 
mission form  of  government.  For  four  long  years  the  forces  behind  this  agitation 
were  compelled  to  wage  earnest  warfare  at  Albany  to  secure  the  adoption  of  the 
necessary  charter  law.  In  the  Assembly  they  were  unable  to  make  substantial 
headway  until  they  had  elected  a  number  of  members  of  that  body  upon  the  specific 
issue  of  whether  they  would  or  would  not  support  the  movement  to  give  the  people 
of  Buffalo  the  opportunity  to  decide  this  charter  question  for  themselves  —  and 


PROHIBITIONS  AGAINST  SPECIAL  LEGISLATION      105 

In  this  respect,  then,  the  provision  of  the  New  York  constitution , 
is  somewhat  similar  to  the  requirement  of  general  legislation  so  far ' 
as  that  requirement  has  been  met  without  subterfuge.  It  gives  large 
measure  of  freedom  from  positive  interference  but  almost  no  meas- 
ure of  independent  opportunity  for  constructive  local  action.  Its 
restrictive  effect  upon  the  city  is  less  binding  than  an  absolute  pro- 
hibition of  the  special  act  in  that  the  city  seeking  a  change  in  its 
government  does  not  in  its  appeal  to  the  legislature  have  to  reckon 
upon  the  attitude  of  other  cities.  But  its  restrictive  effect  is,  on 
the  other  hand,  more  binding  than  an  absolute  prohibition  in  that 
the  legislature  may,  and  sometimes  does,  by  the  enactment  of  a 
special  law  which  it  would  probably  not  be  willing  to  make  general 
in  application,  impose  its  will  upon  a  specific  city  in  spite  of  all  local 
opposition.  Considering  the  fact,  however,  that  legislative  prac- 
tice in  this  latter  respect  has  not  been  very  extensive,  and  that  the 
New  York  scheme  enables  the  legislature  not  only  to  meet  the 
diversified  needs  of  cities  but  also  to  give  some  deference  to  what 
may  doubtless  be  denominated  the  "  individuality "  of  cities,  there 
seems  to  be  little  question  that  the  legal  relation  thus  established 
between  the  city  and  the  state  is,  in  spite  of  its  limitations,  more 
satisfactory  than  that  which  in  the  letter  of  its  requirement 
necessitates  that  the  governments  of  many  cities  shall  spring  from 
a  single  mold  of  general  law. 

Mention  should  be  made  in  this  connection  of  an  amendment 
which  was  added  to  the  constitution  of  Illinois  in  1904,  by  the  terms 
of  which  the  legislature  was  permitted  to  enact  special  laws  appli- 
cable to  the  city  of  Chicago  subject  to  the  approval  of  the  voters  at 

this  in  spite  of  the  fact  that  in  November,  1909,  the  people  had  upon  a  referendum 
voted  in  favor  of  submitting  a  new  charter  to  a  direct  vote.  In  1913  a  charter  was 
at  length  got  through  the  legislature,  but  instead  of  providing  for  a  popular  refer- 
endum it  merely  followed  the  constitutional  requirement  of  submission  to  the  mayor. 
The  mayor,  who  was  known  to  be  of  a  political  party  which  had  taken  a  firm  stand 
against  the  type  of  government  proposed,  promptly  vetoed  the  charter.  Imme- 
diately the  battle-ground  was  reshifted  to  Albany,  where  a  futile  effort  was  made  to 
get  the  charter  enacted  over  the  mayor's  veto.  Early  in  1914  citizen  delegations 
made  once  more  their  pilgrimage  to  the  capital.  A  new  charter  was  again  put 
through  the  legislature  and  this  time  provision  was  made  for  a  referendum.  This 
charter  was  ratified  at  the  polls  at  the  general  election  in  November,  1914. 


106     DEVELOPMENT  OF  THE   HOME  RULE  PROBLEM 

a  general  or  special  election.  The  adoption  of  this  amendment 
was  hailed  as  opening  up  large  possibilities  for  the  reorganization 
and  development  of  the  government  of  our  inland  metropolis 
along  locally  acceptable  lines.  This  expectation  has  not  been  ap- 
preciably realized.  A  new  charter  drafted  by  a  special  municipal 
commission  and  enacted  by  the  legislature  after  some  objectionable 
revamping  was  defeated  at  the  polls  in  1906.  Since  that  date  only 
one  or  two  acts  —  the  most  important  being  that  which  created 
the  municipal  court  of  Chicago  —  have  entered  the  statute  books 
by  the  route  provided  in  this  amendment  of  1904.  That  more 
extended  use  of  this  process  has  not  been  made  may  doubtless  be 
ascribed  in  large  part  to  the  fact  already  mentioned  1  —  to  wit, 
that  under  the  general  municipal  law  of  1872,  which  was  adopted 
by  Chicago  in  1875,  the  city  enjoys  an  uncommonly  large  freedom 
of  action.2 

1  Supra,  94. 

2  The  Michigan  constitution  of  1908  (Art.  V,  sec.  30)  provides  that  "no  local  or 
special  act  shall  take  effect  until  approved  by  a  majority  of  the  electors  voting 
thereon  in  the  district  to  be  affected."     For  a  discussion  of  this  provision  see  infra,. 
Ch.  XVI. 


PAKT    II 

HOME    RULE    IN    THE     STATES    WHICH     HAVE 
GRANTED   CHARTER-MAKING   POWERS   TO 

CITIES 


CHAPTER  IV 

THE  FEDERAL  IDEA  AS  APPLIED  TO  RELATIONS 
BETWEEN  THE  CITY  AND  THE  STATE 

WHATEVER  may  have  been  the  historical  or  legalistic  origin  of 
the  federal  system  of  government  in  the  United  States,  it  is  a  fact 
that  under  this  system  a  large  measure  of  what  may  with  strict 
propriety  be  called  home  rule  was  secured  to  the  several  states  of 
the  Union.  This  was  accomplished  by  the  division  of  govern- 
mental powers  that  was  made  in  the  national  constitution  be- 
tween the  central  government  on  the  one  hand  and  the  states  on 
the  other.  So  precisely,  moreover,  was  this  division  marked  by 
the  enumeration  of  the  powers  of  the  national  government  and  the 
reservation  of  other  powers  to  the  states  that,  in  spite  of  numerous 
judicial  controversies  of  varying  degrees  of  importance,  and  in 
spite  of  the  gradual  expansion  of  national  functions,  it  can  be  said 
in  a  general  way  that  the  system  has  operated  with  smoothness 
and  tolerable  satisfaction,  interrupted  though  it  was  by  the  con- 
test over  the  right  of  secession  and  the  resulting  giant  conflict  of 
arms  —  a  contest  and  conflict  which  were  certainly  in  essence  of 
economic  rather  than  of  legal  origin.  The  states  of  the  Union, 
though  they  have  on  occasion  offered  stubborn  resistance  to  actual 
or  alleged  encroachments  upon  their  legal  rights,  have  in  fact  en- 
joyed a  very  substantial  and  considerable  freedom  from  inter- 
ference "within  their  sphere  of  action"  by  the  government  of  the 
nation. 

If  it  be  conceded  that  this  federal  system,  notwithstanding  the 
political  exigencies  out  of  which  it  arose  and  notwithstanding  its 
obvious  and  proved  limitations,  was  on  the  whole  happily  applied 
to  the  solution  of  a  relation  in  law  between  the  nation  and  its 
integral  units,  may  it  not  be  asked  why  the  same  principle  could 

109 


110  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

not  be  beneficially  applied  in  the  establishment  of  a  satisfactory 
legal  relation  between  the  city  and  the  state.  Indeed  it  would  seem 
to  be  even  more  reasonable  to  apply  such  a  principle  to  relations 
between  cities  and  the  state  government  than  to  relations  between 
the  states  and  the  national  government.  State  lines  are  largely 
historical  accidents.  They  establish  more  or  less  arbitrary  terri- 
torial units.  The  political  problems  of  a  state  of  the  Union  arise 
out  of  many  and  varying  factors.  Scarcely  one  of  these  can  be 
said  to  inhere  in  the  conditions  of  people  of  the  state  as  such.  The 
state  simply  carries  on  those  governmental  functions  which  are 
necessary  or  appear  to  be  desirable  and  which  are  not  within  the 
scope  of  powers  delegated  to  vthe  national  government.  It  makes 
no  difference  whether  the  state  itself  is  or  is  not  a  natural  or  log- 
ical unit  for  the  performance  of  such  functions.  In  point  of  fact 
there  is  little  or  nothing  in  the  actual  economic  or  sociological  inter- 
ests of  the  people  of  a  state  that  makes  it  a  logical  unit  for  most  of 
its  governmental  activities.  The  city,  on  the  other  hand,  is  quite 
'  otherwise.  The  prime  factor  of  its  existence  is  a  congested  popu- 
lation. Mere  congestion  of  people  creates  problems  that  are  pecul- 
iar to  the  city  itself.  To  a  very  considerable  extent,  therefore,  it 
is  a  natural  economic  and  sociological  unit.  As  such  it  is  a  perfectly 
logical  governmental  unit.  Surely  the  application  of  the  federal 
principle  may  be  urged  with  much  force  where  the  contemplated 
local  units  are  of  this  wholly  unartificial  and  unarbitrary  character. 
It  is  a  great  mistake  to  assume  that  the  difficulties  of  cities 
in  their  relations  with  the  state  have  arisen  wholly  or  even  in 
chief  part  from  the  narrow  grants  of  substantive  powers  which 
legislatures  have  bestowed  upon  them.  Certain  it  is  that  many 
cities  have  had  just  reason  to  complain  that  their  charters  failed 
to  confer  this  or  that  needed  power  and  to  inveigh  against  the 
rules  of  somewhat  strict  construction  of  their  charter  powers  which 
courts  have  laid  down.  Any  reasonable  extension  of  the  principle 
of  home  rule  would  unquestionably  imply  a  slight  increase  in  the 
number  of  substantive  powers  that  the  city  might  exercise.  It 
would  imply,  for  example,  that  the  city  itself  (though  not  neces- 
sarily its  governing  authorities)  should  determine  whether  it  should 


APPLICATION  OF  THE  FEDERAL  IDEA  111 

own  and  operate  a- particular  public  utility.  But  this  is  not  all. 
A  casual  reading  of  American  municipal  charters  and  codes  of 
legislative  origin  is  sufficient  to  show  that  in  plain  fact  most  cities 
are  not  laboring  under  the  handicap  of  a  very  restricted  list  off 
powers.  Indeed  most  of  the  enumerations  are  quite  elaborate) 
and  some  of  them  are  far-sweeping  in  scope.  The  principal  pinch 
which  the  city  feels  is  due  to  the  fact  that,  having  outlined  the 
grant  of  powers,  the  charter  proceeds  to  restrict  in  many  ways  the 
manner  in  which  these  powers  may  be  exercised.  It  provides  in 
infinite  detail  the  form  of  government,  including  the  number, 
duties,  powers,  rights,  and  relationships  of  officials  and  employees. 
It  imposes  mandatory  expenditures.  It  determines  in  numerous 
respects  the  conditions  and  procedure  under  which  the  activities 
of  the  city  must  be  conducted.  Indeed  the  major  portion  of  the 
average  municipal  charter  consists  of  provisions  which  are  in  the 
nature  of  important  or  minor  restrictions  upon  the  exercise  of  the 
powers  that  are  conferred. 

We  commonly  think  of  municipal  charters  as  first  conferring  a 
group  of  powers  and  secondly  determining  a  form  of  government. 
Many  advocates  of  home  rule  have  entertained  the  notion  that 
the  solution  of  the  problem  of  relations  between  the  city  and  the 
state  requires  nothing  more  than  the  widening  of  this  group  of 
powers,  perhaps  under  a  general  grant  rather  than  a  specific 
enumeration.1  The  fact  is  that  the  part  of  the  usual  municipal 
charter  which  makes  the  grant  of  powers  to  the  city  cannot  possi^ 
bly  be  separated  from  that  larger  part  which  we  describe  as  deter- 
mining the  "form  of  government."  Thus  among  the  list  of  the 
city's  powers  may  be  included  the  power  to  "  construct  and  main- 
tain a  waterworks."  When,  however,  it  is  discovered  that  the 
charter  in  another  connection  requires  the  city  to  take  over  the 
plant  of  an  existing  water  company,  prescribes  in  considerable 
detail  the  departmental  organization  for  the  management  and 
control  of  the  works,  limits  the  amount  of  bonds  that  may  be 
issued  for  the  purpose  and  the  manner  of  this  issuance,  fixes  rates 

1  See,  for  example,  remarks  of  Mr.  Robert  S.  Binkerd  in  Proceedings  of^tiie — 
Academy  of  Political  Science,  V,  no.  2,  p.  72.  ~~^» 


112     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

that  may  be  charged,  and  compels  the  city  to  extend  mains  upon 
the  demand  of  property-owners  —  when  such  provisions  as  these 
are  found,  it  is  manifest  that  the  naked  power  to  own  and  operate 
is  clothed  with  such  voluminous  and  important  restrictions  that  it 
is  little  short  of  ridiculous  to  consider  the  power  as  of  vital  sig- 
nificance and  the  restrictions  as  of  minor  consequence,  as  pertaining 
only  to  the  "form  of  government."  Indeed  it  is  these  limitations 
in  connection  with  provisions  determining  the  so-called  "form  of 
government"  which  have  on  the  whole  proved  more  harassing  to 
cities  than  the  lack  of  substantive  powers.  If  our  national  gov- 
ernment, without  enjoying  the  authority  to  deprive  the  states  in 
toto  of  a  single  power  which  they  now  possess,  were  nevertheless 
competent  to  determine  the  form  of  their  government  in  the  sense 
here  indicated,  it  is  obvious  that  the  home  rule  powers  of  the  states 
would  be  very  nearly  negligible  in  character. 

It  is  quite  conceivable  that  a  municipal  charter  might  be  framed 
which  would  confer  ample  powers  for  the  expression  and  develop- 
ment of  local  political  ideals  and  which  would  prescribe  the  organ- 
ization of  the  government  in  the  briefest  possible  outline.  It  is  a 
fact,  however,  that  we  have  no  fixed  standards  either  in  law  or  in 
practice  to  apply  in  determining  the  point  at  which  the  limit  has 
been  reached  in  the  matter  of  providing  the  organization  of  a  city 
government.  For  example,  so  far  as  practice  is  concerned  we  are 
by  no  means  in  agreement  as  to  the  extent  to  which  administrative 
departments  and  offices  should  be  established  by  the  terms  of  a 
charter ;  and  when  we  create  a  particular  department  we  regulate 
it  in  as  much  or  as  little  elaboration  as  we  choose.  But  to  the 
extent  that  we  elaborate  we  usually  impose  restrictions  upon  the 
city  in  the  exercise  of  some  power  conferred.  This  being  the  case, 
it  is  very  nearly  inconceivable  that  a  satisfactory  relation  between 
the  city  and  the  state  could  be  established  by  a  constitutional 
grant  of  substantive  powers  to  the  city  while  the  legislature  re- 
tained the  power  to  provide  the  organization  of  the  city's  govern- 
ment. In  other  words,  it  would  be  practically  impossible  to  confer 
/  upon  cities  adequately  broad  powers  of  home  rule  without  con- 
ferring upon  them  also  the  power  to  make  their  own  charters. 


APPLICATION  OF  THE  FEDERAL  IDEA  113 

^It  may  have  been  that  the  members  of  the  Missouri  constitu- 
tional convention  of  1875  analyzed  the  situation  in  some  such 
manner  as  this  when  they  decided  to  grant  charter-making  powers  ,, 
to  St.  Louis  and  other  cities  of  more  than  100,000  inhabitants. 
Or  it  may  have  been  that  they  were  influenced  by  the  analogy  of 
the  relation  between  the  national  government  and  the  states.  It 
is  to  be  regretted  that  the  debates  and  proceedings  of  this  conven- 
tion were  not  published  and  that  so  little  is  known  of  the  origin  of 
this  proposal.  t^Suffice  it  to  say  that  it  marked  the  most  important 
step  that  had  ever  been  taken  ki  the  United  States  in  the  direction 
of  securing  home  rule  to  cities  through  the  medium  of  a  constitu- 
tional provision.  The  plan  originated,  moreover,  not  in  an  East- 
ern state,  where  with  respect  to  important  cities  the  problem  of 
legislative  control  had  been  slowly  evolving  aggravating  symptoms, 
but  in  a  Middle- Western  state  with  a  single  important  city  —  and 
that  a  city  of  fairly  recent  metropolitan  growth.  To  say  the  least, 
in  spite  of  Missouri's  thirty-five  years  of  standing  as  a  state,  it  cer- 
tainly exemplified  something  of  the  pioneer's  daring  originality  of 
spirit  in  the  matter  of  political  institutions.  It  was  introduced, 
too,  only  a  few  years  after  the  scheme  of  prohibiting  special  legis- 
lation for  cities  had  been  first  urged  (in  Illinois)  in  behalf  of  their 
protection  and  before  this  scheme  had  had  any  adequate  try-out. 

The  Missouri  precedent  was  followed  by  California  in  1879,  by 
Washington  in  1889,  Minnesota  in  1898,  Colorado  in  1902,  Oregon 
in  1906,  Oklahoma  and  Michigan  in  1908,  Arizona,  Ohio,  Nebraska, 
and  Texas  in  1912.  Thus  in  a  period  of  thirty-seven  years  had 
one-fourth  of  the  states  of  the  Union  attempted  by  this  somewhat 
heroic  method  to  liberate  their  cities  from  the  dominating  "  inter- 
ference "  of  the  legislature. 

As  might  be  expected  the  constitutional  provisions  by  which 
this  system  of  liberation  was  accomplished  differ  somewhat 
from  state  to  state.  For  general  purposes  of  reference  and  com- 
parison certain  of  the  features  of  the  system,  as  embodied  primarily 
in  constitutions  and  to  a  less  extent  in  statutes,  are  set  down  in 
tabular  form  here  at  the  outset  of  our  discussion  of  the  legal  and 
practical  results  of  these  constitutional  provisions. 


114    THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

TABLE  OP  HOME   RULE  PROVISIONS  AS  DETERMINED 


1 

STATE 

2 

APPLICA- 
BLE TO 

3 

METHOD  OF 
INITIATION 

4 

DRAFTING 
BODY 

5 
RATIFICATION 

Municipal 

State 

'  Missouri 
(1875) 

Cities        of 
over 
100,000  » 

Ordinance  for 
election  of  free- 
holders * 

Elected     board 
of      13      free- 
holders 

f  of   those   vot- 
ing at  a  general 
or  special  elec- 
tion 5 

None 

California 
(1879)  7 

Cities        of 
over    3500 

/<%*  S- 

I  vote  of  council 
for  election  of 
freeholders  ;  com- 
pulsory on  peti- 
tion of  15%  of 
voters  /  f  /  / 

Elected     board 
of      15      free- 
holders 

Majority        vot- 
ing   thereon    at 
a      general     or 
special         elec- 
tion    . 

/    7  f  X 

Concurrent    reso- 
lution   of    abso- 
lute  majority  in 
legislature,  with- 
out  amendment 

Washing- 
ton (1889) 

Cities        of 
20,000       or 
more 

Ordinance  for 
election  of  free- 
holders ;  com- 
pulsory on  peti- 
tion of  25%  of 
voters  8 

Elected    -board 
of     15      free- 
holders 

Majority       vot- 
ing   thereon    at 
a     general     or 
special         elec- 
tion 

None 

Minnesota 
(1896)« 

Any  city  or 

Judge  of  district 
court  may  ap- 
point freeholders; 
compulsory  on 
petition  of  10% 
of  voters  13 

Permanent 
board     of     15 
freeholders 
appointed  for 
4-year  terms  14 

f  "  of  those  vot- 
ing at  a  general 
or  special  elec- 
tion " 

None 

Colorado 
.    (1902) 

Cities        of 
2000        or 
more 

On  5%  petition 
council  must  sub- 
mit proposal  for 
charter  conven- 
tion is 

Board     of     21 
taxpayers 
chosen  at  spe- 
cial election 

Majority       vot- 
ing   thereon    at 
a    special    elec- 
tion 

None 

Oregon  w 
(1906) 

Any  city  or 
town 

New  charter  may 
be  submitted  by 
petition  of  not 
more  than  15% 
of  voters,20  or  by 
council 

Council   or  pe- 
titioners 

Council       itself, 
or    a    majority 
voting      thereon 
at     general     or 
special         elec- 
tion 21 

None 

I  Considering  all  constitutional  and  statutory  amendments  down  to  and  including  1914.     All 
provisions  are  taken  from  constitutions  except  as  otherwise  indicated  by  footnotes. 

The  names  of  most  home  rule  cities  are  given  in  the  text.    Figures  are  from  the  census  of  1910. 

3  There  is  a  specific  constitutional  provision  for  St.  Louis. 

4  Determined  by  law,  the  constitution  being  silent;     Rev.  Stat.,  1909,  sec.  9706.     In  St. 
Louis  the  constitutional  method  was  by  order  of  the  city  council  and  the  county  court  assembled 
in  joint  session  "at  the  request  of  the  mayor." 

5  In  St.  Louis  only  a  majority. 

8  In  St.  Louis  initiation  of  election  of  freeholders  is  by  the  "law-making  authorities,"  and 
ratification  of  new  charter  is  by  majority  vote  at  election,  which  may,  however,  be  special. 

i  Amended  as  to  procedure  in  1887,  1892,  1906,  1911,  and  1914. 

8  Laws  of  1889-90,  p.  215  ff.,  sec.  3,  required  "legislative  authority"  to  act  by  ordinance. 
Laws  of  1895,  ch.  27,  sec.  1  made  ordinance  mandatory  on  petition  of  one-fourth  of  voters. 

»  Right  to  propose  by  initiative  petition  extended  by  Laws  of  1903,  ch.  186. 

10  Laws  of  1890,  p.  215  ff.  The  extent  to  which  the  method  of  amendment  may  be  regu- 
lated by  charter  is  uncertain;  see  infra,  411-425. 

II  Special  election  sustained  in  State  ex.  rel.    Hindley  v.  Superior  Court,  70  Wash.  352  (1912), 
in  spite  of  the  fact  that  the  constitution  and  the  law  (Laws  of  1903,  ch.  186)  apparently  required 
general  elections  only.  12  Amended  1898. 

13  Made  mandatory  by  law  upon  petition;  Laws  of  1899,  ch.  251 ;  of  1901,  chs.  129,  323; 
of  1903,  ch.  238. 


APPLICATION  OF  THE  FEDERAL  IDEA 


115 


BY  CONSTITUTIONS  AND  SUPPLEMENTARY  STATUTES1 


6 
METHOD  OF  AMENDMENT 

7 

FUTURE  GEN- 
ERAL REVISION 

8 
No.  OF  CITIES  THAT 

Initiation 

Ratification 

Might  Adopt 

Have  Adopted2 

Legislative  authority 
of  city  may  propose 

f  of  those  voting  at  a 
general  or  special 
election 

Same  as  under  3, 
4,  and  5  • 

2 

2 

May  be  proposed  by 
legislative  authority 
of  city  or  by   15% 
petition 
/f**- 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

53 

32 

May  be  proposed  by 
legislative  authority 
of  city,  or  by  peti- 
tition  of  15%  of  vot- 
ers,9 or  charter  may 
provide  10 

Majority  voting 
thereon  at  a  general 
election,  but  charter 
may  provide  at  a 
special  election  u 

Same  as  under  3, 
4,  and  5 

5 

4 

May  be  proposed  by 
board  of  freeholders 
or  by  petition  of  5% 
of  voters  17 

|  of  those  voting  at  a 
general  or  special 
election  18 

By  permanent 
board  of  free- 
holders presum- 
ably ratified  as 
under  6  not  5 

About  80 

More    than  40 

May  be  proposed  only 
on  petition  of  5%  of 
voters 

Majority  voting 
thereon  at  a  general 
election  ;  but  if  by 
10%  petition,  at  a 
special  election 

Same  as  under  3, 
4,  and  5 

28 

5 

Same  as  under  3,  and 
4  (applies  to  amend- 
ment    of       existing 
legislative  charters) 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

Nearly  100 

5« 

14  Constitution  limits  term  to  not  exceeding  six  years ;   legislature  has  fixed  it  at  four  years ; 
ibid. 

15  Constitution  requires  "in  cities  having  patrol  limits  now  established"  a  majority  of 
three-fourths  of  those  voting  at  the  election  to  change  such  limits. 

16  Although  constitution  requires  charters  and  amendments  to  be  submitted  "at  the  next 
election,"  the  law  permits  either  a  general  or  special  election ;   Laws  of  1899,  ch.  351 ;   of  1903, 
ch.  238,  sec.  6 ;    and  the  courts  have  sustained  submission  of  a  charter  at  a  special  election ; 
State  ex  rel.  Nicholas  ».  Kiewel,  86  Minn.  136  (1902). 

17  Provision  for  petition  method  is  supplied  by  statute;    Laws  of  1903,  ch.  238,  sec.  6. 

18  The  constitution  compelled  Denver  to  adopt  a  charter. 

19  No  procedure  is  prescribed  by  the  constitution,  but  initiative  and  referendum  provi- 
sions have  been  held  to  extend  to  making  of  charters  and  amendments. 

20  The  exact  number  of  petitioners  and  other  matters  pertaining  to  initiative  and  referen- 
dum procedure  may  be  regulated  by  ordinance  in  each  city ;     State  ex  rel.   Duniway  v.  City 
of  Portland,  133  Pac.  62  (1913).     In  absence  of  such  ordinance  these  are  regulated  by  state  law  ; 
Laws  of  1907,  p.  405  ff.,  sees.  10-12. 

21  Under  the  state  law  (and  presumably  also  under  local  ordinances)  a  charter  or  an  amend- 
ment, whether  proposed  by  the  council  or  by  petitioners,  may  be  "ordained"  by  the  council, 
in  which  event  it  is  submitted  to  the  voters  only  upon  a  petition  for  a  referendum. 

22  Most  of  these  have  not  adopted  completely  new  charters  but  have  merely  revised  their 
charters  fundamentally  by  amendments. 


116    THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 


TABLE  OF  HOME  RULE  PROVISIONS  AS  DETERMINED  BY 


1 

STATE 

2 

APPLICA- 
BLE TO 

3 

METHOD  OP 
INITIATION 

4 

DRAFTING 
BODY 

5 
RATIFICATION 

Municipal 

State 

Oklahoma 
(1908) 

Cities       of 
over  2000 

Ordinance  for  elec- 
tion of  freehold- 
ers ;  election 
compulsory  on 
petition  of  25% 
of  voters 

Board  of  free- 
holders, two 
elected  from 
each  ward 

Majority       vot- 
ing   thereon    at 
a     general     or 
special         elec- 
tion 

Governor  must 
approve  if  not 
in  conflict  with 
state  constitu- 
tion and  laws 

Michigan  » 
(1908) 

Arizona 
(1912) 

Any  city  or 
village 

Council  by  f  vote 
may  submit  pro- 
posal for  charter 
commission  ; 
compulsory       on 
petition  of  25% 
of  voters 

Charter  com- 
mission, one 
elected  from 
each  ward, 
three  at  large 

Majority       vot- 
ing   thereon    at 
a     general     or 
special         elec- 
tion 

Governor  must 
approve  before 
vote  at  polls  ; 
veto  may  be 
overridden  by  f 
of  commission 

Cities        of 
over  3500 

Ordinance  for  elec- 
tion of  freehold- 
ers ;  election 
compulsory  on 
petition  of  25% 
of  voters 

Elected  board 
of  14  free- 
holders 

Majority       vot- 
ing   thereon    at 
a     general      or 
special         elec- 
tion 

Governor  must 
approve  if  not  in 
conflict  with 
state  constitu- 
tion and  laws 

Ohio 
(1912) 

Any  city  or 
village 

Legislative         au- 
thority by  f  vote 
may  submit  pro- 
posal for  charter 
commission  ; 
compulsory       on 
petition   of    10% 
of  voters 

Elected  board 
of  15  electors 

Majority       vot- 
ing   thereon    at 
a     general     or 
special         elec- 
tion 

None 

Nebraska 
(1912) 

Texas  • 
(1912) 

Cities        of 
over  5000 

Law-making  body 
of  city  may  sub- 
mit proposal  for 
election  of  free- 
holders ;  com- 
pulsory on  peti- 
tion of  5%  of 
voters 

Elected  board 
of  15  free- 
holders 

Majority       vot- 
ing   thereon    at 
a      general      or 
special         elec- 
tion 

None 

Cities        of 
over  5000 

Legislative        au- 
thority by  |  vote 
may  propose 
charter    commis- 
sion ;  compulsory 
on     petition     of 
10%  of  voters 

Elected  com- 
mission of  not 
less  than  15 
nor  more  than 
one  for  each 
3000  popula- 
tion 7 

Majority       vot- 
ing   thereon    at 
a     general     or 
special         elec- 
tion 

None 

1  Considering  all  constitutional  and  statutory  amendments  down  to  and  including  1914. 
All  provisions  are  taken  from  constitutions  except  as  otherwise  indicated  by  footnotes. 

•  The  names  of  most  home  rule  cities  are  given  in  the  text.  Figures  are  from  the  census  of 
1910. 

1  Procedure  prescribed  entirely  by  law ;    Laws  of  1909,  no.  279. 

4  Since  constitutional  amendment  of  1912. 


APPLICATION  OF  THE  FEDERAL  IDEA 


117 


CONSTITUTIONS  AND  SUPPLEMENTARY  STATUTES1  (Contd.) 


6 
METHOD  OF  AMENDMENT 

7 

FUTURE  GEN- 
ERAL REVISION 

8 
No.  OF  CITIES  THAT 

Initiation 

Ratification 

Might  Adopt 

Have  Adopted" 

May  be  proposed  by 
legislative  authority 
of    city,    or    by  pe- 
tition    of     25%     of 
voters 

Same  as  under  5 

Same  as   under  3, 
4,  and  5 

Nearly  60 

About  20 

May  be  proposed  by 
|  vote  of  legislative 
body  of  city  or  by 
petition   of   25%    of 
voters     (applies     to 
amendment  of  exist- 
ing legislative  char- 
ters 4) 

Same  as  under  5,  ex- 
cept that  governor's 
veto   may   be   over- 
ridden by  |  vote  of 
council 

Same  as  under  3, 
4,  and  5 

About  116 

16 

(12  more  have 
amended 
legislative 
charters)  6 

May  be  proposed  by 
legislative  authority 
of  city,  or  by  peti- 
tion of  25%  of  vot- 
ers 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

8 

1 

May  be  proposed  by 
legislative  authority 
of  city  by  f  vote,  or 
by  petition  of  10% 
of  voters 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

82 

9 

May  be  proposed  by 
law-making  body  of 
city,  or  by  petition 
of  5%  of  voters 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

12 

None 

May  be  proposed  by 
legislative  authority 
of  city,  or  by  peti- 
tion of  10%  of  voters 
(applies  to    amend- 
ment of  existing  leg- 
islative charters) 

Same  as  under  5 

Same  as  under  3, 
4,  and  5 

40 

7 
(about          11 
others    have 
amended 
legislative 
charters) 

5  In  the  list  of  sixteen  are  included  all  cities  which  have  revised  their   charters  through 
the  medium  of  elected  commissions,  although  some  of  these  merely  adopted  fundamental  amend- 
ments.    In  the  list  of  twelve  are  included  only  those  which  have  adopted  amendments  since 
Nov.,  1912,  previously  adopted  amendments  having  been  held  void. 

6  Prbcedure  prescribed  entirely  by  law ;    Laws  of  1913,  ch.  147. 

7  The  law  does  not  declare  who  shall  determine  the  exact  number. 


CHAPTER  V 

HOME    RULE    IN    MISSOURI  —  CONFLICT    BETWEEN 
STATE   LAWS   AND   CHARTER  PROVISIONS 

As  the  Missouri  constitution  of  1875  came  from  the  hands  of 
the  convention,  it  contained  the  following  complicated  provision 
relating  to  the  city  of  St.  Louis : * 

Sec.  20.  The  city  of  St.  Louis  may  extend  its  limits  so  as  to  embrace 
the  parks  now  without  its  boundaries,  and  other  convenient  and  contiguous 
territory,  and  frame  a  charter  for  the  government  of  the  city  thus  enlarged, 
upon  the  following  conditions,  that  is  to  say :  The  council  of  the  city  and 
county  court  of  the  county  of  St.  Louis,  shall,  at  the  request  of  the  mayor 
of  the  city  of  St.  Louis,  meet  in  joint  session  and  order  an  election,  to  be 
held  as  provided  for  general  elections  by  the  qualified  voters  of  the  city 
and  county,  of  a  board  of  thirteen  freeholders  of  such  city  or  county, 
whose  duty  shall  be  to  propose  a  scheme  for  the  enlargement  and  definition 
of  the  boundaries  of  the  city,  the  reorganization  of  the  government  of  the 
county,  the  adjustment  of  the  relations  between  the  city  thus  enlarged  and 
the  residue  of  St.  Louis  county,  and  the  government  of  the  city  thus  en- 
larged, by  a  charter  in  harmony  with  and  subject  to  the  Constitution  and 
laws  of  Missouri,  which  shall,  among  other  things,  provide  for  a  chief 
executive  and  two  houses  of  legislation,  one  of  which  shall  be  elected 
by  general  ticket ;  which  scheme  and  charter  shall  be  signed  in  duplicate 
by  said  board,  or  a  majority  of  them,  and  one  of  them  returned  to  the 
mayor  of  the  city  and  the  other  to  the  presiding  justice  of  the  county  court 
within  ninety  days  after  the  election  of  such  board.  Within  thirty  days 
thereafter  the  city  council  and  county  court  shall  submit  such  scheme  to 
the  qualified  voters  of  the  whole  county,  and  such  charter  to  the  qualified 
voters  of  the  city  so  enlarged,  at  an  election  to  be  held  not  less  than  twenty 
nor  more  than  thirty  days  after  the  order  therefor ;  and  if  a  majority  of 
such  qualified  voters,  voting  at  such  election,  shall  ratify  such  scheme  and 
charter,  then  such  scheme  shall  become  the  organic  law  of  the  county  and 
city,  and  such  charter  the  organic  law  of  the  city,  and  at  the  end  of  sixty 

»  Art.  IX. 
118 


CONFLICT  WITH  STATE  LAWS  IN  MISSOURI         119 

days  thereafter  shall  take  the  place  of  and  supersede  the  charter  of  St. 
Louis  and  all  amendments  thereof,  and  all  special  laws  relating  to  St. 
Louis  county  inconsistent  with  such  scheme. 

Sec.  21.  A  copy  of  such  scheme  and  charter,  with  a  certificate  thereto 
appended,  signed  by  the  mayor  and  authenticated  by  the  seal  of  the  city, 
and  also  signed  by  the  presiding  justice  of  the  county  court  and  authen- 
ticated by  the  seal  of  the  county,  setting  forth  the  submission  of  such 
scheme  and  charter  to  the  qualified  voters  of  such  county  and  city,  and 
its  ratification  by  them,  shall  be  made  in  duplicate,  one  of  which  shall  be 
deposited  in  the  office  of  the  Secretary  of  State,  and  the  other,  after  being 
recorded  in  the  office  of  the  recorder  of  deeds  of  St.  Louis  county,  shall 
be  deposited  among  the  archives  of  the  city,  and  thereafter  all  courts  shall 
take  judicial  notice  thereof. 

Sec.  22. l  The  charter  so  ratified  may  be  amended  by  proposals  there- 
for submitted  by  the  lawmaking  authorities  of  the  city  to  the  qualified 
voters  thereof,  at  a  general  or  special  election  held  at  least  sixty  days  after 
the  publication  of  such  proposals  and  accepted  by  three-fifths  of  the 
qualified  voters  voting  for  or  against  each  of  said  amendments  so  sub- 
mitted ;  and  the  lawmaking  authorities  of  such  city  may  order  an  election 
by  the  qualified  voters  of  the  city  of  a  board  of  thirteen  freeholders  of  such 
city  to  prepare  a  new  charter  for  such  city,  which  said  charter  shall  be  in 
harmony  with  and  subject  to  the  constitution  and  laws  of  the  State,  and 
shall  provide,  among  other  things,  for  a  chief  executive,  and  at  least  one 
house  of  legislation  to  be  elected  by  general  ticket.  Said  revised  charter 
shall  be  submitted  to  the  qualified  voters  of  such  city  at  an  election  to  be 
held  not  less  than  twenty  nor  more  than  thirty  days  after  the  order  there- 
for, and  if  a  majority  of  such  qualified  voters  voting  at  such  election  ratify 
such  charter,  then  said  charter  shall  become  the  organic  law  of  such  city, 
and  sixty  days  thereafter  shall  take  effect  and  supersede  the  charter  of 
such  city  and  all  special  laws  inconsistent  therewith. 

Sec.  23.  Such  charter  and  amendments  shall  always  be  in  harmony 
with  and  subject  to  the  Constitution  and  laws  of  Missouri,  except  only 
that  provision  may  be  made  for  the  graduation  of  the  rate  of  taxation  for 
city  purposes  in  the  portions  of  the  city  which  are  added  thereto  by  the 
proposed  enlargement  of  its  boundaries.  .  .  . 

Sec.  25.  Notwithstanding  the  provisions  of  this  article,  the  General 
Assembly  shall  have  the  same  power  over  the  city  and  county  of  St.  Louis 
that  it  has  over  other  cities  and  counties  of  this  State. 

1  [As  amended  in  1902.  The  original  of  Sec.  22  read  as  follows  :  "The  charter  so 
ratified  may  be  amended,  at  intervals  of  not  less  than  two  years,  by  proposals  therefor, 
submitted  by  the  lawmaking  authorities  of  the  city  to  the  qualified  voters  thereof  at 
a  general  or  special  election,  held  at  least  sixty  days  after  the  publication  of  such  pro- 
posals, and  accepted  by  at  least  three-fifths  of  the  qualified  voters  voting  thereat."] 


120     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Acting  under  the  power  thus  conferred,  the  corporate  authorities 
of  the  city  and  the  county  of  St.  Louis  set  the  prescribed  machinery 
in  motion  almost  immediately  after  the  constitution  became 
effective.  A  board  of  freeholders  was  elected;  and  this  board 
drafted,  first,  a  "scheme"  for  the  enlargement  of  the  city  and  for 
its  separation  from  the  county,  and  second,  a  charter  for  the  city. 
These  two  instruments  were  ratified  at  the  polls  on  August  22, 
1876.1  The  charter  thus  drafted  and  effectuated  by  the  city  of 
St.  Louis  itself  —  the  first  of  its  kind  in  the  United  States  —  sur- 
vived with  a  few  amendments  until  it  was  superseded  by  a  charter 
adopted  in  similar  fashion  on  June  30, 1914.2 

In  addition  to  the  above-noted  provisions  applicable  specifically 
to  St.  Louis  the  Missouri  constitution  of  1875  extended  the  right 
to  frame  its  own  charter  to  any  city  having  a  population  of  more 
than  100,000  inhabitants.  This  was  a  provision  looking  to  the 
future,  for  at  the  time  of  its  adoption  St.  Louis  was  the  only  city 
of  such  size  in  the  state.  In  1889,  however,  Kansas  City,  having 
attained  the  required  population,3  adopted  a  charter  under  the 
authority  conferred  by  this  general  grant;  and  in  1908  a  second 
charter  was  framed  and  adopted  by  this  city  in  like  manner.4  Ac- 
cording to  the  federal  census  of  1900  St.  Joseph,  the  third  city  of  the 
state,  had  a  population  of  102,979  inhabitants.  By  1910  this 
number  had  fallen  off  to  77,403  ;  the  city  had  thus  lost  the  right  to 
frame  its  own  charter. 

Aside  from  the  fact  that  the  general  provision  applicable  to 
cities  of  more  than  100,000  inhabitants  is  not  complicated  by  any 

1  The  "scheme"  was  declared  to  have  been  ratified  only  after  the  returns  were 
corrected  by  judicial  proceedings.  State  ex  rel.  Beach  v.  Button,  3  Mo.  App.  388 
(1877) ;  State  ex  rel.  Beach  v.  Finn,  4  Mo.  App.  347  (1877). 

1  A  charter  submitted  January  31,  1911,  was  overwhelmingly  defeated  at  the 
polls. 

1  This  fact  was  determined  by  a  municipal  census  taken  in  1885.  See  State  ex 
rel.  Attorney  General  ».  Dolan,  93  Mo.  467.  1887. 

4  Kansas  City's  first  proposed  charter  was  rejected  at  the  polls,  January  30,  1888. 
Another  charter  was  accepted  April  8,  1889.  Amendments  were  adopted  in  1890, 
1892,  1895,  1897,  and  1903.  A  new  charter  was  rejected  at  the  polls  March  7, 
1905.  Another  charter  was  adopted  August  4,  1908,  and  amendments  were  ratified 
July  19,  1910. 


CONFLICT    WITH   STATE    LAWS   IN    MISSOURI       121 

"scheme  "  for  the  separation  of  city  and  county  governments,1  it  is 
with  a  few  slight  differences  practically  identical  with  the  above- 
quoted  provision  specifically  applicable  to  St.  Louis.2 

1  Art.  IX,  sec.  15  declares:  "In  all  counties  having  a  city  therein  containing 
over  one  hundred  thousand  inhabitants,  the  city  and  county  government  thereof 
may  be  consolidated  in  such  manner  as  may  be  provided  by  law." 

2  The  slight  differences  are  as  follows :  (1)  The  general  provision  does  not  indi- 
cate how  proceedings  for  drafting  a  charter  may  be  initiated.     The  St.  Louis  pro- 
vision does  so  indicate.     This  omission  in  the  general  provision  has  been  supplied 
by  statute.     Rev.  Stats,  of  1909,  sees.  9706,  9707,  Laws  of  Mo.,  1887,  pp.  42  ff. 
(2)  The  general  provision  does  not  clearly  provide  for  the  election  of  a  board  of 
freeholders  to  undertake  a  complete  revision  of  an  existing  home  rule  charter.     The 
St.  Louis  provision,  by  the  amendment  to  sec.  22  adopted  in  1902,  expressly  covers 
this  point.     It  has  been  held,  however,  that  the  general  provision  confers  a  "con- 
tinuing "  right  to  frame  charters.     Morrow  v.  Kansas  City,  186  Mo.  675  (1904)  ;  in- 
fra, 197.     (3)  The  general  provision  requires  for  the  adoption  of  any  charter  the 
favorable  vote  of  four-sevenths  of  the  qualified  electors  voting  at  a  general  or  special 
election.     The  St.  Louis  provision  requires  only  a  majority  ratification.     (4)  The 
general  provision  gives  the  board  of  freeholders  only  ninety  days  in  which  to  draft 
a  charter.     The  St.  Louis  provision  imposes  no  time  limit.     (5)  The  general  pro- 
vision requires  as  a  feature  of  the  charter  "two  houses  of  legislation."     The  St. 
Louis  provision,  since  the  amendment  of  1902,  requires  only  one  house.     (6)  The 
charter  drafted  under  the  general  provision  becomes  effective  thirty  days  after 
ratification  at  the  polls.     Under  the  St.  Louis  provision,  it  becomes  effective  sixty 
days  after  ratification. 

The  general  provision  (Art.  IX)  reads  as  follows : 

"Sec.  16.  Any  city  having  a  population  of  more  than  one  hundred  thousand 
inhabitants  may  frame  a  charter  for  its  own  government,  consistent  with  and  subject 
to  the  Constitution  and  laws  of  this  State,  by  causing  a  board  of  thirteen  freeholders, 
who  shall  have  been  for  at  least  five  years  qualified  voters  thereof,  to  be  elected  by 
the  qualified  voters  of  such  city  at  any  general  or  special  election ;  which  board 
shall,  within  ninety  days  after  such  election,  return  to  the  chief  magistrate  of  such 
city  a  draft  of  such  charter,  signed  by  the  members  of  such  board,  or  a  majority  of 
them.  Within  thirty  days  thereafter,  such  proposed  charter  shall  be  submitted  to 
the  qualified  voters  of  such  city  at  a  general  or  special  election  and  if  four-sevenths 
of  such  qualified  voters  voting  thereat  shall  ratify  the  same,  it  shall,  at  the  end  of 
thirty  days  thereafter,  become  the  charter  of  such  city,  and  supersede  any  existing 
charter  and  amendments  thereof.  A  duplicate  certificate  shall  be  made,  setting 
forth  the  charter  proposed  and  its  ratification,  which  shall  be  signed  by  the  chief 
magistrate  of  such  city  and  authenticated  by  its  corporate  seal.  One  of  such  certifi- 
cates shall  be  deposited  in  the  office  of  the  Secretary  of  State  and  the  other,  after 
being  recorded  in  the  office  of  the  recorder  of  deeds  for  the  county  in  which  such  city 
lies,  shall  be  deposited  among  the  archives  of  such  city,  and  all  courts  shall  take  ju- 
dicial notice  thereof.  Such  charter,  so  adopted,  may  be  amended  by  a  proposal 
therefor,  made  by  the  lawmaking  authorities  of  such  city,  published  for  at  least 
thirty  days  in  three  newspapers  of  largest  circulation  in  such  city,  one  of  which 


122  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

.  It  will  be  observed  that  those  who  drafted  these  provisions  of 
the  Missouri  constitution  were  at  great  pains  to  keep  the  city,  thus 
liberated  as  to  its  "own  government/7  in  subordination  to  the 
state.  In  fact  so  carefully  was  this  purpose  sought  to  be  expressed 
that  literally  taken  the  provisions  in  question  embody  hopelessly 
„  irreconcilable  contradictions.  Upon  ratification  by  the  voters, 
the  locally  made  charter  shall  "supersede  any  existing  charter  and 
amendments  thereof."  1  At  the  time  of  the  first  exercise  of  these 
home  rule  powers  this  existing  charter  and  amendments  are,  of 
course,  nothing  more  nor  less  than  state  laws  It  is  plainly  de- 
clared, therefore,  that  the  charter  is  to  supersede  certain  existing 
state  laws.  In  the  same  breath,  however,  it  is  provided  with 
abundant  repetition  that  the  charter  so  framed  and  adopted  shall 
be  "consistent  with  and  subject  to  the  constitution  and  laws  of 
this  state"  and  that  it  "shall  always  be  in  harmony  with  and 
subject  to  the  Constitution  and  laws  of  the  state." 

Now  it  will  be  noted  that  the  term  "laws,"  which  all  home  rule 
charters  must  be  "consistent  with,"  "in  harmony  with,"  and 
''  subject  to,"  is  given  neither  general  nor  specific  definition.  Lit- 
erally it  embraces  any  law  which  the  legislature  is  not  prohibited 
from  enacting.  The  legislature  of  Missouri  was  not  prohibited 
by  this  constitution  from  enacting  laws  relating  to  the  govern- 
ment of  cities.  It  was  indeed  provided  that  such  laws  should  be 

i  shall  be  a  newspaper  printed  in  the  German  language,  and  accepted  by  three-fifths 
of  the  qualified  voters  of  such  city,  voting  at  a  general  or  special  election,  and  not 
otherwise ;  but  such  charter  shall  always  be  in  harmony  with  and  subject  to  the 
Constitution  and  laws  of  the  State. 

"Sec.  17.  It  shall  be  a  feature  of  all  such  charters  that  they  shall  provide, 
among  other  things,  for  a  mayor  or  chief  magistrate  and  two  houses  of  legislation, 
one  of  which  at  least  shall  be  elected  by  general  ticket ;  and  in  submitting  any  such 
charter  or  amendment  thereto  to  the  qualified  voters  of  such  city,  any  alternative 
section  or  article  may  be  presented  for  the  choice  of  the  voters,  and  may  be  voted 
on  separately,  and  accepted  or  rejected  separately,  without  prejudice  to  other 
articles  or  sections  of  the  charter  or  any  amendment  thereto." 

1  The  St.  Louis  provision,  according  to  the  amendment  of  1902,  declares  that 
the  "said  charter  shall  become  the  organic  law  of  such  city,  and  sixty  days  there- 
after shall  take  effect  and  supersede  the  charter  of  such  city  and  all  special  laws 
inconsistent  therewith."  The  provision  in  this  regard  under  which  the  first  charter 
was  adopted  was  very  nearly  the  same. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       123 

general  in  character  and  that  not  more  than  four  classes  of  cities 
should  be  created  for  the  purposes  of  enacting  such  laws.1  Even 
this  limitation,  however,  in  its  application  to  St.  Louis  and  Kansas 
City,  was  largely  read  out  of  the  constitution  by  legislative  prac- 
tice that  was  ultimately  sustained  by  the  courts. 

As  throwing  at  least  some  light  upon  the  question  of  what 
"laws"  a  freeholders'  charter  was  made  "subject  to"  it  seems  ad- 
visable here  at  the  outset  to  examine  briefly  the  rulings  of  the 
Missouri  court  in  respect  to  this  requirement  of  general  legisla- 
tion for  cities  in  its  specific  application  to  the  case  of  St.  Louis  and 
Kansas  City.  From  the  very  beginning  the  legislature  evidently 
did  not  believe  in  its  own  competence  to  enact  laws  specially  appli- 
cable to  these  cities  by  name ;  for  practically  the  only  statutes  of 
this  character  that  were  enacted  were  a  few  which  supplemented  the 
"scheme"  of  separation  by  imposing  duties  on  St.  Louis  officials 
which  were  elsewhere  in  the  state  laid  upon  the  officers  of  coun- 
ties.2 For  all  other  purposes  the  legislature  contented  itself  with 
enacting  laws  applicable  to  "cities  of  the  first  class"  (those  of 
over  100,000  inhabitants) ;  or,  without  reference  to  any  class,  to 
"cities  of  over  100,000  inhabitants"  (of  which  St.  Louis  and, 
after  1885,  Kansas  City  were  the  sole  representatives) ;  or  to 
"cities  of  over  300,000  inhabitants  "  (the  only  such  city  being  St. 
Louis) ;  and  occasionally  —  diversion  and  variety  being  the  only 
apparent  object  —  laws  were  enacted  for  "cities  of  over  350,000" 
or  "400,000"  or  "500,000"  inhabitants. 

For  many  years  after  the  ratification  of  the  constitution  of  1875 
such  legislative  practice  prevailed  in  Missouri  without  being 
brought  to  dispute  before  the  courts.  At  length,  however,  in  the 
case  of  Murnane  v.  City  of  St.  Louis,3  decided  in  1894,  it  was  de- 
clared that  an  act  applying  to  cities  of  300,000  or  more  inhabitants 
was  special  to  the  city  of  St.  Louis  because,  since  tHe  legislature 
had  created  four  general  classes  of  cities,  the  first  of  which  em- 

1  Art.  IX,  sec.  7. 

2  See,  for  example,  Laws  of  Mo.,  1877,  pp.  187,  188,  191,  341 ;   of  1879,  pp.  39, 
40,  98 ;   Rev.  Stats,  of  1899,  sec.  4160  ;   Laws  of  1893,  p.  117 ;   of  1901,  p.  207. 

3  123  Mo.  479  (1894) ;  infra,  155. 


124     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

braced  those  of  more  than  100,000  inhabitants,  this  act  in  effect 
created  a  fifth  class,  and  this  was  inhibited  by  the  constitution.1 
This  rule  of  construction  was  reaffirmed  in  the  case  of  Kansas 
City  ex  rel.  North  Park  District  v.  Scarritt,2  and  was  applied 
with  even  greater  emphasis  in  St.  Louis  v.  Dorr,3  decided  four 
years  later. 

Then  suddenly,  and  without  any  reference  whatever  to  these 
cases,  it  was  declared  in  Kansas  City  v.  Stegmiller 4  to  be  per- 
fectly "plain  that  the  framers  of  the  constitution  ex  vi  termini 
excluded  from  its  legislative  classification  the  city  of  St.  Louis, 
which  it  expressly  authorized  to  adopt  its  own  scheme  and  char- 
ter, and  all  such  cities  as  it  authorized  by  section  16,  article  IX, 
to  frame  and  adopt  their  own  charters."  It  was  asserted  that 
"these  cities  constitute  two  constitutional  classes  distinct  from 
those  chartered  by  the  legislature."  This  was  merely  an  adop- 
tion, without  warning,  explanation,  or  reference,  of  the  view  of  the 
dissenting  judges  in  the  Dorr  case ;  but  this  view  was  reaffirmed 
in  like  manner  in  State  ex  rel.  Hawes  v.  Mason.5  Finally  in  the 
case  of  the  State  ex  rel.  McCaffrey  v.  Mason,6  the  fact  that  the 
earlier  cases  had  been  overruled  without  specific  reference  was 
recognized  and  the  doctrine  of  Murnane's  case  was  in  express  terms 
repudiated. 

The  course  of  the  decisions  upon  this  subject  is  fairly  illustra- 
tive of  the  carelessness  and  disregard  for  previous  utterances 
which  the  Missouri  court  has  so  frequently  shown  in  interpreting 
the  confusing  clauses  of  the  constitution  relating  to  cities.  The 
point  to  be  noted,  however,  is  that  ultimately  it  was  declared  that 
)St.  Louis  and  Kansas  City  were  in  "special"  constitutional  classes, 
wholly  separate  from  the  four  general  classes  which  the  legislature 
was  authorized  to  create.  Laws  applicable  to  St.  Louis  might  refer 

1  The  point  was  also  made  that  the  act  was  special  because  it  was  so  worded 
as  not  to  apply  to  any  city  which  might  in  the  future  attain  a  population  of  300,000 
inhabitants. 

»  127  Mo.  642  (1894) ;   infra,  157. 

*  145  Mo.  466  (1898) ;   infra,  160. 

*  151  Mo.  189  (1899) ;   infra,  148. 

*  153  Mo.  23  (1899) ;  infra,  135.  «  155  Mo.,  486.     1899. 


CONFLICT   WITH   STATE   LAWS   IN    MISSOURI       125 

to  that  city  by  name.1  It  is  not  certain  that  the  court  intended 
to  declare  that  laws  might  be  enacted  in  the  same  manner  for 
Kansas  City.  What  was  probably  intended  was  that  laws  might 
be  made  applicable  to  " cities"  which  had  adopted  charters  under 
the  allowance  of  section  16,  article  IX,  of  the  constitution  — 
Kansas  City  having  been  in  fact  for  many  years  the  only  such 
city.2  It  was  thus,  at  any  rate,  that  the  substance  of  the  con- 
stitutional requirement  of  general  legislation  for  cities  was  con- 
strued out  of  that  instrument  so  far  as  the  two  home  rule  cities 
of  the  state  were  concerned. 

Let  us  return,  then,  to  our  examination  of  the  meaning  of  the 
term  "laws"  as  used  in  the  provisions  of  the  constitution  grant- 
ing to  cities  the  power  to  frame  charters,  and  let  us  view  that 
term  in  the  light  of  this  ultimate  pronouncement  by  the  courts 
on  the  subject  of  the  prohibition  against  special  legislation  for  cities. 

If  cities  under  freeholders'  charters  do  not  enjoy  even  the  con- 
stitutional guarantee  of  general  legislation  that  is  extended  to  all 
other  cities,  it  is  manifest  that  in  any  strict  interpretation  of  terms 
the  provisions  of  the  Missouri  constitution  upon  this  subject  are 
so  utterly  contradictory  as  to  be  practically  meaningless.  For 
by  what  logic  is  a  freeholders'  charter  made  to  supersede  the  state 
laws  which  constitute  its  existing  legislative  charter,  if  the  legis- 
lature may  immediately  re-enact  the  laws  thus  repealed  ?  These 
re-enacted  laws  would  certainly  be  "the  laws  of  the  state."  As 
such  it  would  seem  that  the  locally  made  charter  would  of  neces- 
sity be  "subject  to"  them.  Nor  would  they,  in  the  above-men- 
tioned view  of  the  court,  be  void  by  reason  of  their  speciality. 
What  element  of  the  constitutional  grant  of  the  right  to  frame  a 
charter  remains  if  at  the  same  time  the  legislature  is  empowered 
to  occupy  the  charter  field  to  whatever  extent  it  chooses  by  the 
enactment  of  "laws"  with  which  such  charter  must  be  "in  har- 

1  Even  since  this  ruling  the  legislature  has  continued  for  the  most  part  to  enact 
laws  for  St.  Louis  by  making  them  applicable  to  "cities  "  of  a  designated  population. 

2  In  other  words,  should  St.  Joseph  attain  a  population  of  more  than  100,000 
inhabitants  and  adopt  a  charter  for  its  own  government  under  section  16,  it  is  prob- 
able that  the  legislature  would  be  compelled  to  enact  laws  applicable  alike  to  both 
cities  as  being  representative  of  this  "special"  constitutional  class. 


126  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

mony"?  Clearly  the  constitutional  provisions,  read  as  to  their 
letter,  are  very  nearly  inexplicable.  At  best  they  embody  noth- 
ing more  than  the  grant  of  a  right  the  substance  of  which  is  refer- 
able to  the  grace  of  the  legislature  rather  than  to  the  fundamental 
law  of  the  state.  And  this  fact  is  further  emphasized  by  the  alto- 
gether incomprehensible  utterance  of  the  final  clause  of  the  pro- 
.  vision  relating  to  St.  Louis  —  to  wit,  that  "  notwithstanding  the 
/  provisions  of  this  article,  the  general  assembly  shall  have  the  same 
power  over  the  city  ...  of  St.  Louis  that  it  has  over  other  cities 
...  of  this  state."  In  view  of  the  fact  that  the  power  of  the 
legislature  over  other  cities  of  the  state  included  the  power  to  deter- 
mine every  particular  of  their  charter  laws,  it  is  difficult  to  con- 
jecture what  strange  concept  the  framers  of  this  constitution  en- 
tertained as  to  the  nature  and  meaning  of  the  " right"  which  they 
sought  to  confer  upon  cities. 

It  was  inevitable  that  in  the  course  of  time  question  should  be 
'  raised  as  to  the  order  of  precedence  between  state  laws  and  charter 
provisions  where  the  two  were  found  to  be  in  conflict.  And 
naturally  it  was  the  courts  who  were  required  to  read  some  sem- 
blance of  coherence  and  understanding  into  the  strangely  contra- 
dictory declarations  of  the  fundamental  law.  It  is  small  wonder 
that  they  encountered  difficulty. 

In  taking  up  for  consideration  the  Missouri  cases  dealing  with 
questions  of  conflict  between  state  laws  and  provisions  of  home 
rule  charters,  it  must  be  admitted  at  the  outset  that  no  great  profit 
can  be  derived  from  their  study.  Considered  as  a  whole  they  do 
not  resolve  much  of  lucidity  out  of  the  nebulous  provisions  of  the 
constitution.  As  late  as  1904  the  supreme  court  of  the  state 
frankly  acknowledged  the  futility  of  examining  its  own  opinions 
for  light : 1 

It  is  unnecessary,  and  would  be  futile  at  this  time,  to  tread  again  the 
mazes  of  adjudication,  perhaps  to  become  lost  in  the  labyrinth  of  the 
ingenious  and  divergent  reasons  which  pervade  the  cases  in  respect  to  the 
power  of  municipalities  incorporated  under  article  nine  of  the  constitution, 

1  State  ex  rel.  Goodnow  v.  Police  Commissioners  of  Kansas  City,  184  Mo.  109 
(1904) ;  infra,  136. 


CONFLICT    WITH    STATE    LAWS    IN    MISSOURI        127 

and  in  respect  to  the  power  of  municipalities  to  adopt  charters  regulating 
matters  of  mere  local  concern,  with  which  the  state  at  large  has  no  con- 
cern, which  have  the  effect  of  repealing  prior  general  state  laws  on  the 
same  subject,  or  which  place  such  cities  in  respect  to  such  matters  beyond 
state  control.  The  views  of  the  author  hereof  on  these  questions  are  well 
known,  and  were  expressed  in  Owen  v.  Baer,  154  Mo.  434,  at  great  length 
with  painful  care,  after  exhaustive  investigation,  and  with  such  poor 
results,  that  repetition  or  reiteration  here  would  be  offensive. 

This  is  certainly  either  a  bald  admission  of  the  absolute  meaning- 
lessness  of  the  constitutional  provisions  on  this  subject  or  an 
amazing  confession  of  judicial  incompetence.  Both  the  admis- 
sion and  confession  are  perhaps  justified.  The  constitutional 
provisions  in  question  are  undoubtedly  pregnant  with  ambiguity. 
Even  so,  that  ambiguity  seems  scarcely  sufficient  to  warrant  all  of 
the  "mazes  of  adjudication"  through  which  the  Missouri  court  has 
permitted  itself  to  wander. 

In  spite  of  the  barrenness  of  the  study  of  Missouri  cases  involv- 
ing questions  of  conflict  between  state  laws  and  freeholders'  char-  | 
ter  provisions,  it  seems  worth  while  to  review  some  of  these  cases  / 
briefly,  first,  because  the  Missouri  constitution  was  the  pioneer 
in  this  field ;  and  second,  because  it  is  not  without  interest  to  view 
in  some  detail  the  confusion  of  the  constitution  as  it  has  been 
reflected  in  the  confusion  of  the  judicial  mind ;  and  third,  because 
notwithstanding  the  heavy  mists,  one  or  two  interpretative  lights 
may  be  discovered. 

Does  a  State  Law  supersede  a  Charter  Provision  regulating  Matters 
pertaining  to  Taxes  and  Licenses  f 

In  the  early  case  of  the  State  ex  rel.  Halpin  v.  Powers  l  it  was 
contended  that  the  provisions  of  the  first  home  rule  charter  of  St. 
Louis  by  which  an  annual  assessment  of  real  property  was  required 
to  be  made  were  void  as  being  in  conflict  with  the  general  law 
which  provided  for  biennial  assessments.  In  ultimate  conclusion 
the  court  held  that  by  an  act  of  1877  the  provision  of  the  general 
law  for  biennial  assessments  had  been  repealed  and  that  there- 

1 68  Mo.  320.     1878. 


128     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

fore  no  conflict  prevailed.  It  was  nevertheless  implied,  by  the 
elaborate  discussion  of  the  general  law  which  was  entered  upon, 
that  had  conflict  been  found  to  exist  the  requirements  of  the  general 
law  would  have  prevailed.  No  intimation  was  thrown  out  that 
this  or  any  other  state  law  was  not  the  kind  of  law  which  a  free- 
holders' charter  must  be  "consistent  with"  and  "subject  to." 
It  is  to  be  noted,  of  course,  that  the  assessments  of  property  made 
by  the  city  were  for  purposes  of  state  as  well  as  municipal  taxa- 
tion, but  this  fact  was  not  adverted  to  by  the  court  in  the 
opinion  rendered. 

Fifteen  years  after  the  decision  of  the  Halpin  case  action  was 
brought  by  the  city  collector  of  St.  Louis  to  recover  back  taxes 
assessed  upon  certain  railway  property  within  the  city.  The  state 
law  divided  railway  property  into  two  classes  one  of  which  was 
to  be  assessed  by  the  state  board  of  equalization  and  the  other  by 
assessing  authorities  of  local  corporations  and  subdivisions  of  the 
state.  The  law  further  required  that  taxes  on  this  second,  or 
local,  class  of  property  should  be  "levied  and  collected  according 
to  the  provisions  of"  state  law;  and  these  provisions  ordained, 
among  other  things,  that  the  taxes  assessed  upon  such  property 
should  be  extended  "on  a  separate  tax  book,  to  be  known  as  the 
railroad  tax  book,"  this  duty  being  performed  by  the  clerk  of  the 
county  court  and  by  a  "corresponding  officer"  in  the  city  of  St. 
Louis.  On  the  other  hand,  the  St.  Louis  charter  provided  that  all 
taxes  should  be  extended  on  the  assessment  books,  and  the  mu- 
nicipal board  of  assessment  was  empowered  to  prescribe  the  kind 
of  books  that  might  be  used. 

Here,  then,  was  a  clear  case  of  conflict  between  the  law  and  the 
charter,  although  it  is  obvious  that  the  point  of  conflict  was  ex- 
tremely petty  in  character.  In  the  case  that  arose1  it  was  de- 
clared broadly  that  "the  legislature  had  and  has  the  power  to  alter 
and  amend  the  charter  of  the  city  of  St.  Louis."  2  The  article 
of  the  general  revenue  law  relating  to  the  assessment  and  taxa- 

1  State  ex  rel.  Ziegenhein  v.  St.  Louis  and  San  Francisco  Ry.  Co.,  1 17  Mo.  1.    1893. 
1  On  this  point,  Ewing  v.  Hoblitzelle,  85  Mo.  64,  78  (1884)  was  cited.     See  infra, 
141. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       129 

tion  of  railroads  "professes  to  provide  the  method  for  the  entire 
state  for  extending  and  collecting  taxes  on  railroad  property, " 
and  "in  the  most  explicit  terms"  the  entire  article  is  made  "ap- 
plicable to  the  city  of  St.  Louis."  It  was  held,  therefore,  that  the 
state  law  upon  this  subject  superseded  and  controlled  the  charter 
provisions  and  that  taxes  extended  on  other  than  "a  separate 
book  known  as  the  'railroad  book'"  were  void. 

While  the  court  in  this  case  referred  to  the  general  character 
of  the  law,  the  point  was  not  made  that  the  taxation  of  railroads 
was  a  matter  of  state  as  distinguished  from  local  concern.  In 
plain  fact  the  revenue  derived  from  the  tax  in  question  belonged 
to  the  city,  although  it  may  be  that  this  right  of  ownership  was 
referable  to  the  law  rather  than  to  the  constitutional  grant  of  the 
right  to  frame  a  charter.  The  opinion  did  not  delve  into  this  as- 
pect of  the  matter  at  all.  It  was  apparently  enough  that  the 
will  of  the  legislature  had  been  written.  The  particular  subject 
of  the  legislation  mattered  not.1 

Prior  to  1893  all  liquor  licenses  in  St.  Louis  were  issued  by 
the  city  collector.  Every  dramshop  keeper  was  required  to  have 
both  a  state  and  a  city  license,  the  former  being  issued  by  the  col- 
lector under  authority  of  state  law  and  the  latter  by  the  same 
collector  under  authority  of  municipal  ordinance  enacted  in  pur- 
suance of  a  charter  provision.  In  that  year  the  legislature  passed 
a  law  which  vested  in  an  excise  commissioner  appointed  by  the 
governor  "exclusive  authority  to  grant  dramshop  licenses"  in 
St.  Louis.  Upon  an  application  for  mandamus  to  compel  this 
excise  commissioner  to  issue  a  liquor  license  upon  the  payment 
of  one  fee  instead  of  a  fee  for  the  state  license  and  another  for  the 
city  license,  the  court  held  in  the  case  of  the  State  ex  rel.  Hunt  v. 
Bell 2  that,  notwithstanding  the  charter  and  ordinance,  the  newly 
appointed  commissioner  was  the  only  officer  in  St.  Louis  who  could 
"issue  a  license  whether  it  be  on  behalf  of  the  state  or  the  city." 
This  rule  was  founded  upon  an  unqualified  assertion  of  competence 
in  the  legislature  to  enact  laws  hi  contravention  of  the  provisions 

1  For  subsequent  interpretation  of  this  opinion  by  the  court  itself,  see  infra,  132. 

2  119  Mo.  70.     1893. 


130  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  a  home  rule  charter  or  of  ordinances  passed  in  pursuance  of 
such  provisions.     The  opinion  recited  broadly: 

That  the  legislature  has  the  power  to  repeal  or  modify  ordinances  of 
the  city  of  St.  Louis,  is  no  longer  an  open  question.  It  is  true  the  repealing 
clause  of  the  act  of  1893  does  not  in  terms  mention  city  ordinances ;  and 
we  are  cited  to  one  act  passed  at  the  same  session  where  the  repealing  clause 
makes  special  mention  of  ordinances  (Acts  of  1893,  p.  53),  from  which  it 
is  sought  to  draw  the  conclusion  that  the  general  assembly  did  not  intend 
to  repeal  any  ordinance  by  the  act  now  in  question.  The  repealing  clause 
of  the  act  of  1891  does  not  make  special  mention  of  ordinances  of  any  city, 
yet  there  can  be  no  doubt  but  the  eighth  section  of  that  act  would  and  did 
have  the  effect  to  repeal  any  city  ordinance  in  conflict  with  it.  We  think  it 
was  the  purpose  of  the  act  of  1893  to  provide  for  a  commissioner  who  should 
have  the  sole  power  to  issue  city  dramshop  licenses  as  well  as  licenses  on 
behalf  of  the  state ;  and,  this  intention  appearing,  the  ordinances  of  St. 
Louis  must  give  way  to  the  act  as  far  as  they  are  in  conflict  with  it. 

Here  again,  it  will  be  noted,  there  was  no  consideration  what- 
ever of  the  subject  of  the  law  which  could  "  repeal  or  modify  ordi- 
nances of  the  city."  Apparently  it  was  the  view  of  the  court, 
following  the  literal  wording  of  the  constitution,  that  a  charter 
provision  of  any  kind  was  " subject  to"  any  state  law  on  the  same 
subject.1 

In  the  case  of  the  City  of  St.  Louis  v.  Meyer,2  decided  in  1904, 
the  question  at  bar  concerned  the  authority  of  the  city  to  enact 
a  revenue  ordinance  imposing  a  license  tax  upon  "  peddlers  or 
hawkers"  and  denning  a  hawker  in  such  manner  as  to  include 
farmers  who  sold  products  of  the  soil  by  outcry  or  by  going  from 
place  to  place.  There  existed  at  the  time  of  the  passage  of  this 
ordinance  a  provision  in  the  general  revenue  laws  of  the  state 
denning  peddlers,  and  from  the  definition  therein  laid  down, 
itinerant  persons  who  sold  "  agricultural  and  horticultural  prod- 
ucts" were  expressly  excluded.  Was  the  ordinance  of  the  city 
under  these  circumstances  of  conflict  valid?  It  was  held  to  be 
invalid.  It  was  urged  upon  the  court  that  the  definition  prescribed 

1  "The  state  law  now  in  force  [on  the  subject  of  dramshops  and  the  excise  com- 
missioner] largely  if  not  entirely  supersedes  the  city  ordinances  on  the  subject." 
Note  of  the  compiler  and  annotator  of  Rev.  Code  of  the  City  of  St.  Louis,  1907,  p.  122. 

'"  185  Mo.  583.     1904. 


CONFLICT   WITH   STATE    LAWS   IN   MISSOURI       131 

by  the  general  law  was  only  for  purposes  of  state  taxation  and  that 
it  "nowhere  evinced  an  intention  to  define  who  are  and  who  are 
not  peddlers  for  the  purpose  of  prohibiting  municipalities  from 
exacting  a  license  from  such  persons;"  but  this  fairly  reasonable 
contention  was  summarily  rejected.1  Coming  to  what  was 
perhaps  the  most  significant  point  that  was  made  in  the  case,  the 
court  declared : 

It  is  insisted  by  counsel  for  respondent  that  the  exceptions  contained 
in  section  8861,  which  embraces  the  class  in  which  defendant  must  be 
placed,  can  be  of  no  avail  to  appellant,  for  the  reason  that  the  exception, 
as  applicable  to  him,  was  not  enacted  until  long  after  the  adoption  of  the 
charter  of  the  city  of  St.  Louis ;  and  it  is  argued  that  to  apply  the  excep- 
tion to  him  would  in  effect  be  amending  the  charter,  which  can  only  be  done 
by  a  vote  of  the  people.  In  support  of  this  contention,  we  are  cited  to 
the  case  of  St.  Louis  v.  Dorr,  145  Mo.  466.2  An  analysis  of  that  case  will 
demonstrate  its  want  of  application  to  the  question  involved  in  the  case 
at  bar.  ' '  Matters  of  purely  municipal  and  local  concern  the  Constitution 
intended  to  commit  to  local  self-government,"  and  the  boulevard  act, 
involved  in  that  case,  was  a  subject  of  strictly  municipal  concern.  That 
is  not  this  case ;  the  regulation  and  licensing  of  peddlers  and  hawkers  is 
not  a  subject  which  can  be  limited  to  one  of  strictly  municipal  concern. 
It  is  one  in  which  the  people  of  the  entire  State  have  an  interest,  and  is  a 
subject  to  which  general  legislation  may  be  directed,  and  when  the  State 
speaks  upon  the  subject  by  a  general  enactment  its  force  and  vitality  are 
not  limited  to  any  particular  locality.  This  much  was  conceded  by  the 
learned  judge  in  the  Dorr  case.  He  said:  "In  respect  of  those  topics 
which  involve  the  relations  of  the  city  to  the  State,  there  can  be  no  doubt 
that  the  legislative  power  of  the  State  may  properly  be  exercised  over  the 
city  of  St.  Louis,  as  has  been  done  in  many  instances  disclosed  by  decisions 
in  the  Missouri  Reports.  .  .  .  The  General  Assembly  has,  furthermore, 
undoubted  power  to  legislate  for  St.  Louis,  as  for  all  other  cities,  in  the 

1  Reliance  upon  this  point  was  placed  on  the  decision  of  The  City  of  Moberly  v. 
Hoover,  93  Mo.  App.  663  (1902)  —  a  case  which,  on  the  same  general  grounds 
advanced  here,  held  void  an  ordinance  of  Kansas  City  imposing  a  license  tax  on 
peddlers  of  books.  This  Moberly  case  was  quoted  at  some  length  as  establishing 
the  general  (but  certainly  utterly  vague)  principle  that  when  "the  exercise  of  any 
jurisdiction  cannot  be  brought  within  the  scope  of  the  grant  of  its  powers  without  a 
conflict  with  the  laws  of  the  state,  the  exercise  of  such  jurisdiction  cannot  be 
allowed."  This  was  a  principle  from  which  the  supreme  court  itself  had  previous 
to  this  time  (1904)  already  departed.  See  infra,  153-155,  157-159,  166,  167. 

*  See  infra,  160. 


132     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

full  exercise  of  the  police  power  of  the  State,  as  well  as  to  enforce  direct 
mandates  of  the  fundamental  law  by  appropriate  statutes,  and  to  pass  all 
proper  laws  that  are  general  throughout  the  State.  State  ex  rel.  Ziegen- 
hein  v.  Railroad  (1893),  117  Mo.  1  (22  S.  W.  910),  affords  an  illustration 
of  legislation  of  the  latter  sort.  In  that  case  a  law  intended  to  prescribe 
rules  for  assessing  railroad  property  throughout  the  State  was  held  appli- 
cable to  St.  Louis  and  operative  to  repeal  charter  provisions  on  that  sub- 
ject." 

Here,  at  last,  was  recognition  of  a  wholly  new  doctrine  to  be 
applied  to  the  determination  of  what  laws  a  home  rule  charter 
must  be  "consistent  with"  and  " subject  to"  —  a  doctrine  which 
was  founded  upon  the  distinction  between  matters  of  state-wide 
concern  and  matters  of  merely  local  concern  and  which,  as  the 
court  admitted  and  as  we  shall  later  see,1  had  prior  to  this  deci- 
sion of  1904  been  introduced  into  the  judicial  interpretation  of 
the  constitutional  provision  here  under  review.  The  superiority 
I  of  a  state  law  over  a  charter  provision  was  to  be  determined  by 
/  applying  the  test  of  whether  it  did  or  did  not  deal  with  a  matter 
of  state  as  contrasted  with  local  concern.  In  other  words,  the 
court  had  in  part  clarified  the  ambiguity  of  the  constitution  by 
declaring  that  freeholders'  charters  must  be  "in  harmony  with" 
and  "subject  to"  those  "laws  of  the  state"  which  are  of  general  as 
distinguished  from  local  concern. 

It  is  certainly  somewhat  difficult  to  see  why  the  classification 
and  definition  of  persons  for  the  purpose  of  collecting  license  taxes 
that  are  levied  largely,  if  not  indeed  wholly,  with  the  object  in 
view  of  raising  local  revenue,  is  a  subject  "in  which  the  people  of 
the  entire  state  have  an  interest."  On  this  point  the  Missouri 
court  was  characteristically  dogmatic.  It  may  well  be  that  in 
one  view  of  the  matter  the  whole  subject  of  any  local  revenue 
policy,  in  all  of  its  details,  is  one  in  which  the  state  has  an  inter- 
est, on  the  theory  that  state  and  local  policies  in  such  a  matter 
should  be  planned  and  developed  with  reference  to  each  other, 
that  they  should  in  fact  constitute  a  single  harmonious  unit.* 
But  the  court  did  not  see  fit  to  offer  this  or  any  other  argument 

i  Infra,  153-155,  157-159,  166,  167. 
» Infra,    278. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       133 

in  support  of  its  didactic  ruling.     The  affair  was  a  state  affair 
simply  because  the  court  so  declared  it  to  be.1 

As  we  shall  have  occasion  to  note  in  another  connection,2  the 
Missouri  court  has  from  the  beginning  been  somewhat  liberal  in 
its  sanction  of  the  exercise  of  financial  powers  by  home  rule  cities 
where  no  question  of  conflict  with  a  state  law  has  been  raised. v 
But  there  is  no  instance  of  record  in  which  a  charter  provision  on 
the  subject  of  local  revenue  has  been  held  to  be  paramount  to  a 
state  law  with  which  it  chanced  to  be  out  of  harmony.  Nor  have 
the  opinions  employed  any  satisfactory  course  of  reasoning  or  laid 
down  any  definite  rules  that  may  be  applied  in  the  determination 
of  issues  of  supremacy  involving  questions  of  this  character. 

Does  a  State  Law  supersede  a  Charter  Provision  in  Matters  per- 
taining to  the  Police  ? 

Prior  to  the  adoption  of  freeholders'  charters  in  either  St.  Louis 
or  Kansas  City  the  police  departments  of  each  of  these  cities  had 
been  placed  by  law  under  the  control  of  state-appointed  com- 
missions. The  St.  Louis  police  commission  had  been  established 
in  1861 ;  that  of  Kansas  City  in  1874.  In  their  home  rule  charters 
neither  of  these  cities  had  attempted  to  upset  this  arrangement 
and  take  over  complete  control  of  the  police  upon  the  theory  that 
the  right  to  resume  such  control  was  properly  included  in  the 
right  to  " frame  a  charter  for  its  own  government."  The  St.  Louis 
charter  expressly  provided3  "that  no  system  of  police  shall  be 
established  or  maintained  other  than  the  present  metropolitan 
system  as  long  as  the  same  is  established  by  law."  The  charter 
of  Kansas  City  contained  one  or  two  provisions  relating  to  the 
subject  of  police.  Under  such  circumstances  it  is  not  surprising 
that  the  courts  were  not  early  called  upon  to  determine  any  issue 
of  paramountcy  between  state  laws  and  charter  provisions  upon 
this  subject. 

1  See  in  contrast  the  broad  view  of  the  California  court  on  the  subject  of  licenses 
for  revenue  purposes.     Infra,  277. 

2  Infra,  173-176.  ,  '  Art.  Ill,  sec.  26,  sub-sec.  2. 


134  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  a  very  early  case,  however,  the  court  was  presented  with  a 
question  which  trenched  somewhat  closely  upon  this  point.1  An 
act  of  1875  provided  for  the  election  of  one  constable  in  each  ward 
of  St.  Louis.  A  city  ordinance  of  1878  consolidated  two  wards 
into  a  single  district  for  the  purpose  of  electing  constables  and  pro- 
vided for  the  election  of  three  such  officers  in  this  district.  The 
municipal  ordinance  was  thus  clearly  in  violation  of  the  state 
law,  and  action  was  brought  to  oust  the  persons  who  had  been 
elected  under  authority  of  the  ordinance.  The  court  held  that  it 
was  highly  doubtful  whether  the  charter  itself  conferred  upon 
the  legislative  body  of  the  city  the  power  to  enact  the  ordinance 
in  question.  But  in  any  case,  it  was  declared,  "if  the  number  of 
constables  is  insufficient,  it  is  for  the  general  assembly  to  increase 
the  number."  This  ruling  was  apparently  founded,  in  part  at 
least,  upon  the  view  that  "the  constable  is  not  a  city  officer,  he  is 
a  state  officer.  It  is  an  office  created  by  general  law  for  every 
township  in  the  state,  and  every  ward  in  the  city.  He  is  a  state 
officer  in  the  same  sense  that  sheriffs  and  clerks  of  courts  of  record 
are  state  officers,  although  they  can  only  discharge  the  duties  of 
their  respective  offices  within  a  limited  territory  and  not  through- 
out the  state." 

If  the  point  that  was  made  as  to  the  insufficiency  of  the  charter 
grant  of  power  to  the  municipal  legislature  be  taken  as  not  having 
been  in  the  mind  of  the  court  a  conclusive  determination  of  the 
case,  it  may  be  said  that  this  was  the  first  Missouri  case  in  which 
the  distinction  between  a  state  and  a  local  affair  was  applied  in  the 
settlement  of  a  conflict  between  state  law  and  charter  provisions. 
It  cannot,  however,  be  said  to  have  been  unmistakably  applied. 
It  was  not  at  this  time  clearly  declared  that  the  laws  with  which 
charter  provisions  must  be  "consistent"  were  those  laws  which 
dealt  with  matters  of  state  concern.  Moreover,  it  is  important 
to  note  that  in  numerous  cases  decided  at  a  later  date  this  dis- 
tinction was  wholly  ignored.  The  probability  is  that  the  court 
merely  stumbled  into  this  discussion  of  the  "state"  character  of 
the  office  of  constable  without  any  very  clear  notion  as  to  the  direct 

1  State  ex  rel.  Attorney-General  v.  McKee,  69  Mo.  504.     1879. 


CONFLICT    WITH    STATE    LAWS   IN    MISSOURI        135 

relation  of  such  discussion  to  the  clauses  of  the  constitution  con- 
ferring the  charter-making  power. 

In  the  course  of  the  opinion  rendered  in  this  case,  one  interest- 
ing declaration  was  made.  It  was  asserted  that  "the  city  has 
ample  means  to  maintain  the  peace  and  good  order  of  the  city  by 
providing  for  a  police  force  and  increasing  it  from  time  to  time." 
It  does  not  appear,  however,  whether  the  court  intended  to  say 
that  the  city  had  this  "means"  by  grant  of  authority  in  the  law 
by  which  the  state  police  commission  was  established  or  by  grant 
of  authority  to  frame  its  own  charter.  Further  than  the  bare 
expression  quoted  the  opinion  did  not  go. 

In  1899  the  St.  Louis  police  law  of  1861  was  repealed  and 
another  law  embodying  practically  the  same  principles  was 
enacted  in  its  stead.1  The  constitutionality  of  this  act  was  at- 
tacked upon  several  grounds  but  not  upon  the  ground  that  it  was 
in  conflict  with  the  provisions  of  the  local  charter  for  the  obvious 
reason  that  the  charter  of  St.  Louis,  as  has  already  been  noted, 
expressly  recognized  the  binding  force  of  the  state  law  creating  a 
"metropolitan  police  system."  However,  the  following  excerpt 
from  the  opinion  handed  down  in  the  case  that  arose  2  is  of  con- 
siderable interest  and  importance  as  presaging  the  ruling  that 
would  be  adopted  by  the  court  whenever  the  specific  question  of 
conflict  should  be  presented.  Referring  to  the  police  acts  of  1861 
and  1899,  the  opinion  declared : 

Laws  like  these  and  those  of  other  States  providing  a  metropolitan 
police  system  for  large  cities,  are  based  upon  the  elementary  proposition 
that  the  protection  of  life,  liberty,  and  property  and  the  preservation  of 
the  public  peace  and  order  in  every  part,  division  and  sub-division  of  the 
State  is  a  governmental  duty  which  devolves  upon  the  State  and  not  upon 
its  municipalities  any  farther  than  the  State  in  its  sovereignty  may  see 
fit  to  impose  it  upon  or  delegate  it  to  the  municipalities.  The  right  to 
establish  the  peace  and  order  of  society  is  an  inherent  attribute  of  govern- 
ment, whatever  its  form,  and  is  co-extensive  with  the  geographical  limits 
thereof,  and  touching  every  part  of  its  territory. 

From  this  duty  existing  in  the  very  nature  of  the  State  government, 
flows  the  corresponding  power  to  impose  upon  municipalities  of  its  own 

1  Act  of  March  15,  1899. 

2  State  ex  rel.  Hawes  v.  Mason,  153  Mo.  23  (1899) ;   supra,  124. 


136  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

creation  a  police  force  of  its  own  creation,  and  to  compel  its  support  out 
of  the  municipal  funds.  Such  is  the  conceded  doctrine  by  the  most  learned 
of  our  writers  upon  constitutional  law,  and  such  is  the  consensus  of  judi- 
cial decision  throughout  the  United  States. 

Wherever  the  legislature  has  the  right  to  assume  control  of  a  municipal 
office,  it  has  likewise  the  right  to  compel  the  city  to  provide  for  defraying 
the  expenses  of  such  office,  and  while  it  is  sometimes  difficult  to  draw  the 
line  and  distinguish  whether  a  given  office  is  of  a  public  or  State  character 
or  is  simply  one  to  subserve  a  municipal  function,  it  is  almost  universally 
conceded  that  police  boards  and  metropolitan  police  forces  are  State 
officers  and  fall  clearly  within  legislative  control. 

Five  years  after  the  decision  of  this  case  the  court  was  at  length 
called  upon  to  apply  the  views  thus  expressed  in  the  determina- 
tion of  a  direct  instance  of  conflict  between  state  law  and  a  charter 
provision  relating  to  a  matter  of  police  control.  Among  the 
very  few  provisions  of  the  Kansas  City  charter  on  the  subject  of 
police  was  one  which  regulated  the  making  of  removals  from  the 
force.  The  state  law  of  1874  regulated  the  same  matter  in  a  dif- 
ferent manner.  An  officer  who  had  been  removed  according  to 
the  requirements  of  the  law  sought  reinstatement,  alleging  that 
the  charter  provisions  had  superseded  the  law.  Relying  upon  the 
views  expressed  in  the  St.  Louis  case  last  mentioned  above,  the 
court,  in  the  case  of  the  State  ex  rel.  Goodnow  v.  Police  Commis- 
sioners of  Kansas  City,1  declared  as  follows  :• 

It  follows,  without  more  discussion  or  elaboration,  that  article  XI  of 
the  charter  of  Kansas  City,  adopted  in  1899,  did  not  have  the  effect  of 
superseding  or  repealing  the  act  of  1874,  and  that  so  long  as  that  act 
remains  in  force  it  is  beyond  the  power  of  Kansas  City  to  repeal  it  or  to 
create  a  board  of  police  commissioners  or  a  police  force  of  its  own.  It  also 
follows  that  the  defendants  hold  their  offices  by  virtue  of  the  act  of  1874, 
and  the  amendments  thereto,  and  not  by  force  of  the  city  charter,  and  that 
the  same  is  true  of  the  relator.  It  also  follows  that  when  relator  was 
appointed  a  member  of  the  police  force,  by  virtue  of  the  act  of  1874,  he 
accepted  that  appointment  subject  to  all  the  terms  and  provisions  of  that 
act  as  fully  as  if  those  terms  had  been  specified  in  his  commission.  By 
the  terms  of  that  act  he  could  not  be  removed  for  any  reason  personal  to 
himself,  except  upon  charges,  with  notice  and  after  trial.  But  by  the 
terms  of  that  act,  he,  like  every  one  else  similarly  appointed,  held  for  a 

i  184  Mo.  109.     1904. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI      137 

term  of  three  years,  subject  however  to  that  term  becoming  reduced  and 
subject  to  the  possibility  of  removal,  without  notice,  charges  or  trial,  in 
the  event  that  the  exigencies  of  any  extraordinary  emergencies  made  it 
necessary,  in  the  judgment  of  the  board,  to  reduce  the  number  of  the  police 
force,  and  of  that  necessity  the  board  was  the  sole  and  final  arbiter,  and 
in  such  event  any  one,  officer  or  private,  of  the  force  selected  by  the  board 
could  be  discharged  to  meet  the  exigency. 

By  the  decision  of  this  case  it  was  directly  determined  that  a 
freeholders'  charter  could  not  supersede  a  state  law  relating  to 
the  subject  of  police ;  and  if  it  could  not  supersede  an  existing  law, 
certainly  it  would  have  to  be  "in  harmony  with"  and  "subject  to" 
any  such  law  that  might  be  subsequently  enacted.  Moreover, 
the  specific  reason  advanced  hi  support  of  this  determination  was 
that  the  control  of  police  was  a  matter  of  general  or  state  rather 
than  of  local  or  municipal  concern. 

This  doctrine  as  applied  to  the  relative  competence  of  the  state  and 
the  city  in  matters  of  police  control  received  additional  affirmation 
in  the  case  of  the  State  ex  rel.  McNamee  v.  Stobie,1  decided  in  1905. 

At  the  time  when  the  St.  Louis  charter  and  "scheme"  of  sepa- 
ration were  adopted  the  police  force  of  the  city  was,  under  the 
terms  of  the  law  of  1861  as  amended,  given  jurisdiction  in  the 
county  of  St.  Louis.  This  jurisdiction  was  continued  by  the  pro- 
visions of  the  "scheme"  —  whether  because  it  was  actually  de- 
sired or  because  the  freeholders  who  drafted  the  scheme  and  char- 
ter doubted  their  competence  to  alter  this  situation  does  not 
appear.  The  act  of  1899,  which  repealed  the'  act  of  1861  and 
amendments,  made  no  provision  for  the  exterritorial  jurisdiction 
•of  the  municipal  police.  In  1905  the  notoriously  lawless  condi- 
tion of  affairs  at  Delmar  race-track,  where  there  was  open  viola- 
tion of  the  gambling  and  liquor  laws  of  the  state  as  well  as  fre- 
quent crimes  and  disturbances  of  the  peace,  attracted  widespread 
attention.  Governor  Folk  directed  the  board  of  police  commis- 
sioners of  the  city  to  detail  police  officers  with  orders  to  proceed 
into  the  county  and  arrest  the  offenders.  He  based  his  authority 
to  issue  this  direction  upon  the  fact  that  "the  metropolitan  police 

*  194  Mo.  14.     1905. 


138  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

force  of  the  city  of  St.  Louis  is  by  the  Scheme  .  .  .  given  the 
same  jurisdiction  in  the  county  as  in  the  city."  A  writ  of  prohi- 
bition against  the  police  officers  detailed  for  this  purpose  was  sought 
and  was  granted  by  the  court,  the  view  being  taken  that  while  the 
provisions  of  the  " scheme"  and  charter  conferring  exterritorial 
jurisdiction  upon  the  police  were  valid  under  the  law  of  1861  be- 
cause they  were  "in  harmony  with"  that  law,  they  nevertheless 
were  rendered  inoperative  by  the  act  of  1899,  the  provisions  of 
which  "clearly  indicated  the  purpose  and  intention  of  the  legis- 
lature to  divest  the  officers  of  the  police  system  of  the  city  of  St. 
Louis  of  all  authority  to  exercise  jurisdiction  in  the  county  of  St. 
Louis."  In  the  most  emphatic  manner  the  court  reiterated  the 
opinion  that  the  control  of  police  was  a  matter  of  state  and  not  of 
municipal  concern,  and  the  view  was  expressed  not  only  that  the 
framers  of  the  "scheme"  and  charter  "had  nothing  to  do  with 
the  creation  of  the  metropolitan  police  system  of  the  city"  and 
"were  without  authority  to  prescribe  the  powers  and  duties"  of 
police  officers  in  the  absence  of  "some  existing  law  upon  which  to 
predicate  it,"  but  also  that  they  never  contemplated  that  the  pro- 
visions in  question  "should  continue  in  force  regardless  of  the  fact 
that  the  law  which  conferred  such  powers  should  be  repealed." 
Throughout  the  opinion  the  police  laws  under  review  were  referred 
.to  as  "general"  laws  —  general,  that  is,  not  in  respect  to  their 
application,  for  in  this  respect  they  could  scarcely  have  been  more 
'special  and  local  in  character,  but  general  in  the  sense  that  they 
•dealt  with  a  subject  of  general  or  state  concern. 

Does  a  State  Law  supersede  a  Municipal  Ordinance  enacted  in  the 
Exercise  of  the  Police  Power  f 

It  is  a  well-known  fact  that  municipal  corporations  are  univer- 
sally endowed  with  the  power  to  enact  ordinances  of  a  police 
nature.  And  it  is  likewise  well  known  that  these  ordinances  fre- 
quently —  perhaps  more  frequently  than  not  —  regulate  matters 
that  are  also  the  subject  of  regulation  by  state  law.  Questions 
of  conflict  between  such  ordinances  and  such  laws  are  not  there- 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       139 

fore  peculiar  to  cities  with  home  rule  charters.  It  seems  utterly 
beside  the  purpose  of  our  study  here  to  enter  upon  any  detailed 
discussion  of  the  fairly  established  rule  by  which  the  supremacy 
of  state  laws  over  ordinance  provisions  is  determined.  The  point 
of  importance  is  that  in  the  application  of  these  rules  there  is  no 
material  difference  —  and  there  is  obviously  no  inherent  reason 
why  there  should  be  difference  —  between  the  case  of  home  rule 
cities  and  of  cities  under  legislative  charters. 

A  single  case  from  the  Missouri  jurisdiction  will  serve  both  to 
indicate  the  general  rule  that  is  applied  and  to  illustrate  the  ab- 
sence of  consequential  differences  between  cities  of  the  two  classes. 
In  the  case  of  St.  Louis  v.  De  Lassus  l  the  question  was  raised  as 
to  the  validity  of  an  ordinance  providing  a  fine  of  from  twenty- 
five  to  one  hundred  dollars  for  selling  meat  on  Sundays  after  the 
hour  of  nine  in  the  morning  because  of  its  being  in  conflict  with  a 
state  law  which  made  the  selling  of  " goods,  wares,  or  merchandise" 
on  Sunday  a  misdemeanor  punishable  by  a  fine  not  to  exceed  fifty 
dollars.  The  court  said : 

The  St.  Louis  charter,  article  3,  section  26,  paragraphs  5,  10  and  14, 
conferred  the  power  to  pass  this  ordinance  and  unless  the  ordinance  is 
void  because  in  conflict  with  the  Constitution  and  laws  of  the  State,  the 
judgment  of  the  Court  of  Criminal  Correction  is  wrong.  It  cannot  be 
held  invalid  because  it  imposes  a  fine  for  an  act  which  the  statutes  of  the 
State  denounce  as  a  criminal  offense  and  provide  a  punishment  therefor. 
[State  v.  Muir,  164  Mo.  610;  State  v.  Gustin,  152  Mo.  108.]  But  not- 
withstanding the  charter  is  sufficiently  comprehensive  to  authorize  the 
ordinance  in  question,  we  are  required  by  the  demurrer  of  the  defendant  to 
inquire  whether  in  the  language  of  section  23  of  article  9  of  the  Constitu- 
tion, the  charter  provision  is  "in  harmony  with  and  subject  to  the  Con- 
stitution and  laws  of  Missouri."  We  take  it  this  was  one  of  the  principal 
contentions  of  the  defendant  in  the  Court  of  Criminal  Correction.  .  .  . 

Two  inconsistencies  apparently  suggest  themselves.  First,  section  2243 
of  the  statute  makes  it  a  criminal  offense  to  sell  "goods,  wares  or  mer- 
chandise" at  any  hour  or  at  any  moment  on  Sunday,  whereas  the  ordinance 
only  prohibits  it  after  9  o'clock  in  the  forenoon.  Is  this  difference  fatal 
to  the  latter?  This  question  was  answered  for  us  by  this  court  in  St. 
Louis  v.  Cafferata,  24  Mo.  94.  The  general  law  of  this  state  was  the  same 
at  that  time  as  now,  being  section  36  of  article  8  of  chapter  50,  Revised 

*  205  Mo.  578.     1907. 


140  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Statutes  1855.  The  charter  powers  on  this  subject  were  ample  to  author- 
ize regulation  by  the  city  of  trade,  etc.,  not  repugnant  to  the  Constitution. 
The  defendant  was  prosecuted  under  an  ordinance  which  provided  that 
"whoever  shall,  in  the  city,  on  Sunday  .  .  .  after  the  hour  of  nine  o'clock 
in  the  forenoon  of  that  day  keep  his  store,  shop  or  other  place  of  business 
open,  shall  be  deemed  guilty  of  a  misdemeanor."  Judge  Leonard,  on  this 
point,  said:  "The  general  Legislature  have  regulated  the  subject  for  the 
whole  State  as  they  deemed  proper,  and  the  city  government  have  made 
such  local  regulations  as  they  thought  fit  for  the  good  order  and  peace  of 
the  city.  The  provisions  of  the  two  laws  are  different,  but  there  is  no 
such  inconsistency  between  them  as  to  annul  or  in  any  way  affect  the  pro- 
visions of  the  local  law  {St.  Louis  v.  Bentz,  11  Mo.  61) ;  and  the  defen- 
dant was  subject  to  both  laws  and  amenable  to  the  penalties  they  pre- 
scribed." Merely  because  the  city  did  not  make  its  ordinance  as  broad 
as  the  statute  did  not  render  it  so  inconsistent  as  to  make  it  void.  It  could 
have  made  its  ordinance  as  broad  as  the  statute  and  in  no  wise  have  con- 
flicted with  the  Constitution  or  general  laws  of  the  State.  [St.  Louis  v. 
Schoenbusch,  95  Mo.  618 ;  City  of  DeSoto  v.  Brown,  44  Mo.  App.  152 ; 
Kansas  City  v.  Hallett,  59  Mo.  App.  160.] 

Does  the  fact  that  the  Legislature  fixed  the  punishment  for  the  sales 
on  Sunday  prevent  the  city  making  a  higher  fine  ?  We  think  not,  and  so  it 
was  ruled  in  Kansas  City  v.  Hallett,  supra.  The  scope  and  purpose  of 
the  statute  and  ordinance  are  the  same,  the  one  reaching  the  supposed 
evil  by  making  it  a  criminal  offense ;  the  other,  providing  by  ordinance 
for  the  civil  prosecution.  In  State  ex  rel.  v.  Field,  99  Mo.  352,  Judge 
Black,  speaking  for  this  court,  of  cities  organized  under  section  16  of 
article  9  of  the  Constitution  and  the  provision  that  they  shall  be  "con- 
sistent with  and  subject  to  the  Constitution  and  laws  of  the  State,"  said : 
"Charters  thus  adopted  will,  of  necessity,  be  more  or  less  at  variance,  and 
that  they  will  be  unlike,  in  many  respects,  is  within  the  contemplation  of 
the  Constitution."  This  statement  has  since  been  expressly  adopted 
and  reiterated  in  Kansas  City  v.  Marsh  Oil  Co.,  140  Mo.  458,  and  Kansas 
City  v.  Bacon,  147  Mo.  259.  In  the  latter  case,  it  was  added;  "'Con- 
sistent with'  does  not  import  exact  conformity,  but  means  substantial 
harmony  with  the  principles  of  the  Constitution." 

The  opinion  thus  expressed  would  doubtless  have  been  precisely 
the  same  had  St.  Louis  enacted  the  ordinance  in  question  under 
authority  granted  by  a  legislative  charter,  except  that  no  refer- 
ence would  have  been  made  to  any  constitutional  provision.  It 
is  certainly  quite  in  line  with  opinions  expressed  in  many  other 
jurisdictions  in  which  no  power  to  frame  charters  has  been  con- 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       141 

f erred  upon  cities.  The  whole  problem  of  the  relation  between 
state  police  laws,  under  which  criminal  prosecutions  may  be 
brought,  and  municipal  police  ordinances  on  the  same  subject, 
which  may  be  enforced  by  civil  or  quasi-criminal  actions,  is  one 
which  deserves  more  consideration  than  has  been  given  to  it  and 
more  satisfactory  adjustment  than  has  been  reached  either  in  law 
or  in  practice.  But  it  is  not  a  problem  that  is  in  any  wise  pecu- 
liar to  the  city  endowed  with  power  to  frame  its  own  charter.1 

Does  a  State  Law  supersede  a  Charter  Provision  governing  Matters 
pertaining  to  Elections  ? 

Under  the  first  freeholders'  charter  of  St.  Louis  power  was  con- 
ferred upon  the  mayor  to  appoint  election  officials  who,  it  may  be 
remarked,  performed  their  functions  in  respect  to  all  elections 
whether  state  or  local  that  were  held  within  the  city.  In  1883  the 
legislature  enacted  a  law  which  made  it  the  duty  of  the  recorder 
to  appoint  these  officials.  In  the  case  of  Ewing  v.  Hoblitzelle  2 
action  was  brought  by  the  mayor  seeking  to  restrain  the  recorder 
from  exercising  this  authority  of  appointment,  the  validity  of  the 
law  being  assailed  upon  the  ground,  among  other  things,  that  the 
charter  provision  took  precedence  over  the  law.  The  opinion 
that  was  handed  down  is  of  interest  chiefly  because  it  is  eloquently 
illustrative  of  the  early  narrow  view  which  the  Missouri  court 
entertained  as  to  the  scope  of  the  home  rule  powers  conferred  by 
the  constitution  —  a  view  which,  considering  the  literal  phrase- 
ology of  the  constitution,  was  certainly  not  wholly  unjustified. 
The  opinion  recited : 

It  is  argued  that  inasmuch  as  these  sections  authorized  the  voters  of 
the  city  of  St.  Louis  to  frame  and  adopt  a  charter  for  the  government  of 
the  city,  which,  when  adopted  in  the  manner  therein  provided,  should 

1  See  also  as  showing  how  the  general  rule  has  been  applied  by  the  Missouri 
courts  indifferently  to  home  rule  cities  and  to  cities  under  legislative  charters :  City 
of  St.  Louis  v.  Bentz,  11  Mo.  61  (1847) ;  City  of  St.  Louis  v.  Cafferata,  24  Mo.  94 
(1856) ;  State  v.  Cowan,  29  Mo.  330  (1860) ;  City  of  Independence  v.  Moore,  32 
Mo.  392  (1862)  ;  Ex  parte  Hollwedell,  74  Mo.  395  (1881) ;  City  of  St.  Louis  v. 
Schoenbusch,  95  Mo.  618  (1888).  2  85  Mo.  64.  1884. 


142  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

take  the  place  of  and  supersede  the  charter  theretofore  granted  by  the 
legislature  and  all  amendments  thereto,  that  as  to  all  matters  of  local  self- 
government  an  imperium  in  imperio  was  created,  and  as  to  such  matters 
the  city  was  emancipated  from  state  and  legislative  control.  These 
sections  will  satisfactorily  show,  if  examined  by  themselves,  and  would 
show,  were  it  in  our  province  to  examine  them  in  the  light  of  the  debates, 
when  they  were  the  subjects  of  discussion  in  the  convention  which  formu- 
lated the  constitution,  conclusively,  that  the  chief  object  sought  to  be 
accomplished  by  them  was  not  to  emancipate  the  city  from  legislative 
control,  but  to  allow  it  to  enlarge  its  limits  and  cut  it  loose,  when  thus 
enlarged  from  the  county,  so  as  to  free  it  from  county  government  and 
exempt  the  property  therein  from  taxation  for  county  purposes.  It  is 
true  that  constitutional  authority  was  given  to  the  people  of  the  city  to 
frame  and  adopt  a  charter  which  should  supersede  the  charter  and  all 
amendments  to  it  in  existence  at  the  time  of  its  adoption,  but  the  idea  that 
it  was  thereby  intended  to  create  a  sovereignty,  and  deny  to  the  state  the 
right  of  control,  is,  we  think,  completely  overthrown  by  the  following 
limitations  or  conditions  imposed  by  section  23,  article  9  viz.:  "Such 
charter  and  amendments  shall  always  be  in  harmony  with  and  subject  to 
the  constitution  and  laws  of  the  state  of  Missouri."  "Subject  to,"  that 
is,  placed  under  the  authority,  the  dominion  of  the  constitution  and  laws 
of  the  state.  That  it  was  never  designed  to  free  the  city  from  state  con- 
trol is  further  shown  by  section  25,  of  article  9,  which  is  as  follows :  "Not- 
withstanding the  provisions  of  this  article  the  general  assembly  shall  have 
the  same  power  over  the  city  and  county  of  St.  Louis  that  it  has  over  other 
cities  and  counties  of  this  state." 

At  the  time  of  the  adoption  of  the  scheme  and  charter,  there  was, 
and  is  now,  a  law  of  the  state  in  force  providing  for  a  board  of  police  com- 
missioners in  the  city  of  St.  Louis,  consisting  of  five  persons,  of  whom  the 
mayor  of  the  city  is  one,  and  the  other  four  appointees  of  the  governor, 
and  confirmed  by  the  senate.  These  commissioners  have  control  of  the 
entire  police  force  of  the  city,  and  are  invested  with  large  powers  affecting 
the  local  government  of  the  city.  Suppose  that  the  charter  of  the  city 
when  framed  and  adopted,  in  conformity  with  the  scheme  authorizing  it, 
had  contained  a  provision  for  a  board  of  police  commissioners,  consisting 
of  five  persons,  one  of  whom  should  be  the  mayor  and  the  other  four  his 
appointees,  and  investing  them  with  the  same  power  of  control  over  the 
police  force  of  the  city  which  the  law  of  the  state  invested  in  those  ap- 
pointed by  the  governor,  which  would  have  prevailed,  the  law  of  the  state 
or  the  charter  provision?  If  the  charter  provision  in  that  respect  is  to 
prevail  the  law  of  the  state  would  then  be  subject  to  the  charter  in  the 
face  of  the  constitution,  which  declares  that  the  charter  shall  be  subject 
to  the  law  of  the  state.  Public  corporations  are  the  auxiliaries  of  the  state 


CONFLICT   WITH    STATE   LAWS   IN    MISSOURI      143 

in  the  important  business  of  municipal  rule  and  are  called  into  being  at 
the  pleasure  of  the  state,  and  the  same  voice  which  speaks  them  into 
existence  can  speak  them  out.  State  ex  rel.  v.  Miller,  66  Mo.  328.  And  it 
was  never  intended  by  the  constitutional  provisions  above  referred -to 
(as  I  have  attempted  to  show),  that  the  municipality  of  the  city  of  St. 
Louis  should  rise  higher  than  the  fountain  head.  The  state  at  large  is  as 
much  interested  in  the  method  of  conducting  elections  in  said  city,  at 
which  all  state  as  well  as  municipal  officers  are  elected,  which  method  by  the 
act  of  1883  it  assumes  to  prescribe,  as  it  is  in  having  a  well-regulated  police 
in  the  city,  which  it  has  assumed  to  provide  for  in  the  law  creating  a  board 
of  police  commissioners,  who  are  state  as  well  as  municipal  officers,  and 
into  whose  hands  the  important  trust  is  confided  of  controlling  its  police 
force. 

We  do  not  hold  that  the  legislature  in  exercising  the  power  referred  to 
in  section  25,  article  9,  of  the  constitution,  can  exercise  it  by  the  passage 
of  a  local  or  special  law ;  but  that  it  can  do  so  by  a  general  law  we  have 
no  doubt,  and  when  it  is  exercised,  as  we  think  it  has  been  exercised  in  the 
act  of  1883,  by  a  general  law,  and  such  law  is,  in  any  of  its  provisions,  in 
conflict  with  a  charter  provision  that  the  law  prevails  over  the  charter  in 
obedience  to  the  mandates  of  the  constitution  that  "such  charter  and 
amendments  shall  always  be  in  harmony  with  and  subject  to  the  consti- 
tution and  laws  of  the  state." 

It  will  be  observed  here  that  the  court  did  refer  to  the  interest 
of  the  state  in  the  methods  of  conducting  elections  "at  which  state 
as  well  as  municipal  officers  are  elected,"  and  the  analogy  was 
drawn  between  the  state's  interest  in  such  a  matter  and  its  interest 
in  the  police  department.  It  was  by  no  means  clearly  declared, 
however,  that  the  charter  provision  was  " subject  to"  the  state  law 
in  question  because  this  state  law  related  to  a  matter  of  general 
as  distinguished  from  local  concern.  Indeed  the  opinion  as  a  whole 
breathed  the  idea  that  where  any  "general"  law  "is,  in  any  of  its  x^ 
provisions,  in  conflict  with  a  charter  provision,"  such  "law  pre- 
vails over  the  charter."  J  Incidentally  it  may  be  remarked  again 
that  this  interpretation  of  the  constitution  as  requiring  "general" 

1  The  Ewing  case  was  cited  a  few  years  later  in  support  of  the  doctrine  that  an 
election  law  applicable  to  cities  of  more  than  100,000  inhabitants  had  repealed  cer- 
tain provisions  of  the  then  existing  legislative  charter  of  Kansas  City.  State  ex  rel. 
Attorney  General  v.  Dolan,  93  Mo.  467  (1887).  There  was  no  intimation  what- 
ever that  a  legislative  charter  and  a  freeholders'  charter  did  not  stand  on  precisely 
the  same  footing  in  their  relation  to  state  laws. 


144  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

as  distinguished  from  " special"  legislation  for  St.  Louis  was  sub- 
sequently expressly  overruled  by  the  Missouri  court.1 

In  the  case  of  the  State  ex  rel.  Faxon  v.  Owsley,2  decided  ten 
years  after  the  Ewing  case,  it  was  held,  among  other  points  settled, 
that  a  state  law  creating  the  office  of  recorder  of  voters  in  Kansas 
City  took  precedence  over  any  charter  provision  with  which  it 
might  be  in  conflict.  It  may  be  noted  that  the  charter  of  the  city 
recognized  the  binding  force  of  the  law  requiring  registration  of 
voters  which  was  in  existence  at  the  time  the  charter  was  framed.3 
Relying  upon  this  fact  and  upon  the  doctrine  of  the  Ewing  case, 
the  court  declared  that  it  was  "  unnecessary  to  review  the  argu- 
ment of  counsel,  questioning  the  power  of  the  legislature  to  pass 
the  act,  so  far  as  its  general  scope  and  purpose  is  concerned ;  or 
to  make  any  observations  on  the  claim  of  the  relators,  citizens  of 
Kansas  City,  that  it  is  obnoxious  to  the  principle  of  local  self- 
government  which  it  is  said  pervades  the  constitution."  No  new 
or  additional  light,  therefore,  was  shed  upon  the  broad  doctrine  an- 
nounced in  the  first  case  dealing  with  this  subject.  And  this  may 
be  said  also  of  the  case  of  the  State  ex  rel.  McCurdy  v.  Slover  4 
which  in  effect  simply  reaffirmed  the  decision  of  the  Ewing  case. 

It  is  obvious  that  the  Missouri  cases  involving  questions  of 
conflict  between  state  election  laws  and  charter  provisions  are  not 
wholly  convincing.  In  view  of  the  fact  that  in  a  number  of  cases 
the  court  ultimately  laid  down  the  rule  that  the  "laws"  which 
\  home  rule  charters  must  be  "consistent  with"  and  "subject  to" 
are  laws  relating  to  matters  of  general  or  state-wide  concern  and 
not  to  matters  of  local  or  municipal  concern,  it  would  seem  that 
in  the  later  cases  on  the  subject  of  election  provisions  this  rule 
might  with  propriety  have  been  more  fully  discussed  and 

1  Supra,  124. 

*  122  Mo.  68.     1894. 

8  Charter  of  1889,  Art.  I,  sec.  8 ;  Art.  17,  sees.  27,  39,  141. 

4  126  Mo.  652  (1894).  The  Faxon  case  decided  also  that  the  "legislature  had 
the  constitutional  right  to  require  the  city  to  pay  the  expenses  of  holding  all  elec- 
tions, whether  national,  state,  or  municipal  held  in  such  city,  out  of  revenue  raised 
by  the  city."  This  rule,  which  was  reaffirmed  in  State  ex  rel.  Lynn  ».  Board  of 
Education  of  the  City  of  St.  Louis,  141  Mo.  45  (1897),  was  wholly  independent  of 
any  question  of  conflict  between  state  law  and  charter  provision. 


CONFLICT    WITH    STATE    LAWS    IN    MISSOURI       145 

applied.  Apparently  the  court  has  never  unmistakably  declared 
that  the  regulation  of  strictly  municipal  elections  is  a  matter  of 
state  concern.  In  practice,  however,  the  legislature  of  the  state 
has  acted  under  this  assumption,  and  St.  Louis  and  Kansas  City 
have  acquiesced.  The  article  of  the  St.  Louis  charter  of  1876 
dealing  with  " elections  and  registration"  was  not  regarded  as 
operative  after  the  decision  of  the  Ewing  case  save  as  to  the  time 
of  holding  the  general  city  elections,1  which  matter  the  legislature 
never  attempted  to  regulate.  The  1914  charter  of  the  same  city 
regulates  only  a  few  matters  pertaining  to  elections  that  are  not 
covered  by  state  law.2  The  brief  provisions  on  this  subject  termi- 
nate with  an  indirect  appeal  for  larger  powers  by  declaring  that 
"  whenever  it  may  be  done  in  harmony  with  the  state  constitution 
and  laws,  the  board  of  aldermen  shall  by  ordinance  provide  for 
and  regulate  municipal  elections  and  registration  of  voters  and 
may  provide  by  ordinance  for  non-partisan  nominations,  preferen- 
tial voting,  or  proportional  representation."  3  Lest  the  few  char- 
ter references  to  the  "board  of  election  commissioners"  should  at 
some  subsequent  time  be  made  invalid  by  the  repeal  of  the  state 
law  creating  this  board,4  it  is  provided  that  any  such  reference 
"shall  be  taken  to  include  any  board  or  person  having  charge  of 
elections  in  the  city."  8  The  1908  charter  of  Kansas  City  likewise 
contains  very  limited  provisions  on  the  subject  of  elections,6 
and  some  of  these  merely  adopt  state  laws  or  are  expressly  de- 
clared to  be  subject  to  such  laws.7 

On  the  whole,  therefore,  it  seems  reasonable  to  conclude  that 
the  doctrine  of  the  Missouri  cases  has  been  taken  to  mean  that  as 
to  all  matters  concerning  elections  —  municipal  or  otherwise  —  a 

1  The  compiler  and  annotator  of  the  charter  declares  that  "all  the  original  pro- 
visions" of  Article  II  except  the  first  section  "were  superseded  by  the  state  statutes, 
which  now  control  elections.     The  charter  provisions  are  therefore  omitted  here." 
Revised  Code  of  St.  Louis,  1907,  p.  303. 

2  Charter  of  St.  Louis,  1914,  Art.  II. 

3  Ibid.,  sec.  9. 

«  Acts  of  Mo.,  1903,  p.  170. 

6  Charter  of  St.  Louis,  1914,  Art.  XXV,  sec.  7. 

•  Charter  of  Kansas  City,  1908,  Art.  XVIII,  sees.  23-25,  29,  34,  35. 

7  Ibid.,  sees.  23,  29,  34. 


146  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

state  law  supersedes  and  controls  a  contrary  provision  in  a  home 
rule  charter. 

Does  a  State  Law  supersede  a  Charter  Provision  regulating  the 
Annexation  of  Territory  ? 

It  will  be  recalled  that  one  of  the  powers  specifically  conferred 
upon  the  city  of  St.  Louis  in  adopting  its  first  home  rule  charter 
and  the  "scheme"  of  separation  from  the  county  was  the  power 
to  "  extend  its  limits."  1  Such  extension  was  effected  by  this 
"scheme"  and  charter.2  The  charter,  however,  made  no  provi- 
sion for  any  future  annexation  of  territory  to  the  city  —  a  policy 
of  omission  which  was  followed  also  in  the  charter  of  1914.  Natu- 
rally, therefore,  so  far  as  St.  Louis  is  concerned,  no  question  has 
ever  arisen  over  a  conflict  between  state  law  and  charter  provision 
on  the  subject  of  the  annexation  of  territory.  Indeed  there  ap- 
pears also  to  be  no  state  law  upon  the  subject  that  is  applicable  to 
St.  Louis ; 3  and  the  city  is  in  consequence  utterly  incapable  of 
taking  any  action  looking  to  an  enlargement  of  its  boundaries. 

Not  so  with  Kansas  City.  In  1887  the  legislature  adopted  a 
so-called  "enabling  act"  which  cleared  up  several  uncertainties 
in  the  procedure  by  which  "cities  having  a  population  of  more 
than  one  hundred  thousand  inhabitants"  might  frame  their  own 
charters,4  and  which  —  to  employ  the  language  of  the  supreme 
court  —  "was  designed  to  aid  cities  in  organizing  under"  the  home 
rule  provision  of  the  constitution.  Among  other  things  this  act 
empowered  cities  to  extend  their  limits  "by  ordinance"  when- 
ever a  proposed  extension  should  be  approved  by  a  four-sevenths 
vote  of  the  people  to  be  included.  No  action  by  the  voters  of  the 
city  itself  was  required. 

Now,  as  every  one  knows,  one  of  the  characteristic  features  of 
practically  every  municipal  charter  is  the  description  of  the  ter- 

1  Supra,  118. 

*  "Scheme,"  sec.  1 ;  Charter,  Art.  1,  sec.  2. 

3  See  the  compilation  of  state  laws  applicable  to  St.  Louis  in  Revised  Code  of  St. 
Louis,  1907,  pp.  77-223. 

4  Revised  Statutes  of  Mo.,  1909,  sees.  9703  ff. 


CONFLICT   WITH    STATE    LAWS   IN    MISSOURI       147 

rial  jurisdiction  of  the  city.  The  Kansas  City  charter  of  1889 
ntained  such  a  description.  Shortly  after  its  adoption  Kansas 
ity  attempted  to  annex  the  suburban  city  of  Westport  by  ordi- 
nance, action  being  taken  under  the  law  of  1887  the  terms  of  which 
had  also  been  embodied  in  the  charter.1  Contest  over  the  validity 
of  this  act  of  annexation  was  raised  in  the  case  of  the  City  of  West- 
port  v.  Kansas  City.2  The  court  declared  that  it  was  "too  plain 
to  admit  of  any  doubt  that  any  act  on  the  part  of  Kansas  City 
which  contracts  or  expands  its  territorial  jurisdiction  is  an  amend- 
ment of  its  charter."  But  the  constitution  itself  provided  the 
procedure  to  be  followed  in  amending  a  freeholders'  charter,  in- 
cluding among  other  requirements  the  taking  of  a  referendum 
vote.3  In  this  instance  amendment  was  sought  to  be  effected 
merely  by  ordinance.  The  point  was  made  by  the  court  that, 
while  the  legislature  was  unquestionably  competent  to  amend 
such  charter,  in  view  of  the  fact  that  it  was  expressly  declared  to 
be  "subject  to"  the  laws  of  the  state,4  yet  "the  legislative  will 
must  be  exercised  in  a  manner  which  is  consistent  with  the  consti- 
tution." This  law,  which  in  effect  empowered  Kansas  City  to 
amend  its  charter  by  ordinance,  was  void  because  "the  plain 
language  of  the  constitution"  required  that  every  proposed  amend- 
ment "must  have  the  assent  of  three-fifths  of  the  voters  voting 
upon  the  proposition."  In  other  words,  while  the  constitution 
recognized  the  right  of  the  legislature  directly  to  amend  home  rule 
charters  without  subjecting  such  laws  to  a  referendum  vote,  it 
did  not  recognize  the  right  of  the  legislature  to  confer  the  power 
of  amendment  to  be  exercised  in  a  manner  differing  from  that 
laid  down  in  the  fundamental  law. 

Under  this  view  this  act  of  annexation  could  have  been  effected 
by  a  law  directly  establishing  it,  unless  such  law  would  be  invalid 
by  reason  of  further  constitutional  inhibition.  Such  a  law,  how- 
ever, would  of  necessity  refer  to  Kansas  City  and  Westport  by 

1  Charter  of  Kansas  City,  1889,  Art.  I,  sec.  7. 

2  103  Mo.  141.     1890. 

3  Supra,  121. 

4  Citing  Ewing  r.  Hoblitzelle,  supra,  141,  and  State  ex  rel.  Kansas  City  v.  Field, 
infra,  153. 


148  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

name  or  at  least  by  such  specific  description  that  it  would  be 
obviously  special  in  character.  It  would  probably,  therefore,  be 
unconstitutional.1  The  logical  deduction  from  this  was  that  the 
only  way  by  which  the  legislature  could  deal  with  the  subject 
of  annexation  of  territory  to  home  rule  cities  was  through  the  me- 
dium of  a  law  conferring  the  power  to  annex  but  requiring  that  the 
power  be  exercised,  so  far  at  least  as  the  city  itself  was  concerned, 
by  the  procedure  laid  down  in  the  constitution  for  the  making  of 
charter  amendments.  The  attention  of  the  court  was  called  to 
this  practical  result  of  its  decision,  but  the  rejoinder  was  promptly 
given  that  "if  the  foregoing  provisions  of  the  constitution  bring 
about  that  result,  then  that  ends  the  matter  so  far  as  the  courts  are 
concerned." 

It  may  be  remarked  that  the  legislature  did  not  amend  (and 
never  has  amended)  the  provision  of  the  law  of  1887  relating  to 
the  matter  of  annexation.  That  part  of  the  law  which  provides 
for  the  taking  of  a  vote  of  the  people  residing  upon  the  territory  to 
be  annexed  has  been  regarded  in  practice  as  valid.  The  annex- 
ation that  was  involved  in  the  Westport  case  was  subsequently 
validated  by  submitting  the  proposition  to  a  vote  of  the  people 
of  Kansas  City  in  the  form  required  for  the  adoption  of  charter 
amendments.  This  action  was  fully  sustained  by  the  court  in 
the  case  of  Kansas  City  v.  Stegmiller,2  where  it  was  broadly  as- 
serted that  "in  so  far  as  the  action  of  Kansas  City  alone  is  con- 
cerned, there  is  a  plain  constitutional  grant  of  the  power  to  extend 
its  limits  and  a  definite  mode  pointed  out." 

It  will  be  observed  that  the  court  here  carefully  limited  this 
declaration  to  "the  action  of  Kansas  City  alone."  The  opinion 
was  not  expressed  that  a  home  rule  city  might,  wholly  in  the 
absence  of  state  law,  enlarge  its  boundaries  by  the  process  of 
charter  amendment.  This  point  was  not  raised  for  the  obvious 
reason  that,  so  far  as  the  action  of  the  people  residing  in  the  territory 
to  be  annexed  was  concerned,  there  existed  a  state  law  the  validity 
of  which  was  not,  and  could  not  reasonably  have  been,  assailed  as 

1  Supra,  124,  125. 

»  151  Mo.  189.     1899. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       149 

to  such  provision  specifically.1  It  is  not  to  be  believed,  however, 
that  the  Missouri  court  would  in  the  absence  of  this  or  a  similar  law 
have  upheld  the  authority  of  the  city  to  annex  territory  at  will  with- 
out the  consent  of  the  extra-urban  inhabitants  affected.  This  would 
be  to  give  the  home  rule  city  exterritorial  power  of  enormous  conse- 
quence. It  would  be  little  short  of  ridiculous  to  hold  that  the  grant 
of  authority  to  frame  a  charter  included  any  such  power.  The 
question  has  never  been  directly  passed  upon  in  Missouri  because, 
as  already  mentioned,  St.  Louis  has  never  attempted  to  annex  terri- 
tory under  a  freeholders'  charter,  and  as  applied  to  Kansas  City  the 
exterritorial  effect  of  the  city's  action  is  governed  by  state  law. 

It  will  be  noted  also  that  neither  of  the  annexation  cases  men- 
tioned above  involved  specifically  any  question  of  conflict  between 
state  law  and  charter  provision.  No  freeholders'  charter  in 
Missouri  has  ever  embodied  a  provision  upon  this  subject  except 
the  Kansas  City  charter  of  1889,  which  merely  incorporated  the 
provision  of  the  law  of  1887.2  So  far  as  relates  to  the  action  of  the 
city  itself,  it  seems  to  be  fully  settled  that  neither  a  state  law  nor 
a  charter  provision  can  provide  any  other  mode  for  the  effectu- 
ation of  annexation  than  that  prescribed  for  the  making  of  charter 
amendments.  As  to  this  phase  of  the  matter,  therefore,  there  is 
no  necessity  for  either  statutory  or  charter  regulations,  and  con- 
flict of  provision  is  a  highly  remote  possibility.  So  far  as  relates 
to  extra-urban  action,  it  seems  reasonable  to  conclude  that  any 
pertinent  law  would  supersede  a  contrary  charter  provision  for  the 
plain  reason  that,  with  or  without  the  law,  the  charter  provision 
would  be  void  as  being  upon  a  subject  beyond  the  competence  of 
the  city  to  control  through  the  medium  of  a  locally  made  charter. 

Does  a  State  Law  take  Precedence  over  a  Charter  Provision  relating 
to  the  Control  of  Privately  Owned  Municipal  Utilities  ? 

No  case  has  ever  been  presented  to  the  Missouri  courts  involving 
a  question  of  conflict  between  a  freeholders'  charter  provision  on 

1  The  validity  of  the  entire  act  was  assailed  upon  the  ground  of  its  being  special 
legislation  (supra,  124)  and  upon  certain  other  flimsy  pretexts. 

2  Omitted  from  the  charter  of  1908. 


150     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  subject  of  public  utilities  and  a  state  law  enacted  after  the 
constitution  of  1875  went  into  effect.  At  least  a  partial  reason 
for  this  is  that  the  constitution  expressly  prohibited  the  legislature 
from  granting  the  right  to  construct  and  operate  any  street  railway 
or  authorizing  the  transfer  of  the  franchise  of  such  railway  "  with- 
out the  consent  of  the  local  authorities."  l  Two  cases  have 
arisen,  however,  involving  the  relation  of  charter  provisions  to  a 
law  that  antedated  the  constitution  itself  and  therefore  all  home 
rule  charters.  This  law,  enacted  in  1860  and  known  as  the 
"  third  parallel  law,"  prohibited  a  street  railway  from  being  con- 
structed parallel  to  an  existing  line  on  any  street  within  three 
blocks  from  the  said  existing  line.  The  St.  Louis  charter  of  1876 
conferred  upon  the  municipal  assembly  (the  council)  the  sole 
power  to  grant  the  right  to  construct  street  railways;  and  the 
question  that  arose  was  whether  in  the  exercise  of  this  "sole 
power"  the  municipal  assembly  was  nevertheless  limited  by  the 
"  third  parallel  law."  It  should  perhaps  be  mentioned  that  the 
legislative  charter  of  St.  Louis  had  been  revised  in  1866,  and 
the  power  to  grant  the  right  to  construct  street  railways  had  been 
conferred  on  the  lawmaking  body  of  the  city  in  practically  the 
same  terms  as  those  employed  in  the  freeholders'  charter  of  ten 
years  later.  In  this  act  of  revision  no  reference  was  made  to  the 
"third  parallel  law"  of  1860. 

In  the  first  case  that  arose  over  the  relation  of  the  charter  to 
this  law,2  the  court  declared  : 

The  charter  now  in  force  in  the  city  of  St.  Louis,  under  which  the  ordi- 
nance authorizing  the  defendant  to  build  its  road  was  passed,  was  framed 
and  adopted  in  pursuance  of  the  provisions  of  section  20,  Article  IX  of 
the  Constitution  of  1875,  and  vests  the  legislative  power  of  the  city  in  two 
houses,  styled  the  Municipal  Assembly  of  St.  Louis.  This  charter  super- 
seded the  former  charter  of  the  City  and  all  amendments  thereof,  and 
was  by  the  Constitution  required  to  be  in  harmony  with  the  laws  of  the 
State.  This  charter,  like  those  previously  noticed,  confers  upon  the  mu- 
nicipal assembly  the  sole  power  and  authority  to  grant  to  persons  or  corpora- 
tions the  right  to  construct  street  railways  in  the  city,  by  ordinances  not 

1  Art.  XII,  sec.  20 ;  supra,  62. 

1  St.  Louis  Railroad  Co.  v.  South  St.  Louis  Railroad  Co.,  72  Mo.  67.     1880. 


CONFLICT   WITH    STATE    LAWS    IN    MISSOURI       151 

inconsistent  with  any  law  of  the  State.  Indeed  the  entire  grant  of  legis- 
lative power  is  subject  to  these  conditions.  (Art.  Ill,  sec.  26.)  Article  X 
of  this  charter  provides  that :  "  The  Municipal  Assembly  shall  have  power 
by  ordinance  to  determine  all  questions  arising  with  reference  to  street 
railroads  in  the  corporate  limits  of  the  city,  whether  such  questions  may 
involve  the  construction  of  such  street  railroads,  granting  the  right  of  way, 
or  regulating  and  controlling  them  after  completion,"  etc.  The  power 
here  conferred  is  to  be  exercised,  of  course,  by  such  ordinances  as  the  Munic- 
ipal Assembly  is  competent  to  pass :  that  is,  ordinances  not  inconsistent 
with  the  laws  of  the  State.  Article  X  is  but  a  detailed  amplification  of 
the  power  conferred  by  the  llth  clause  of  section  26,  article  III,  besides 
being  somewhat  legislative  in  its  character.  It  follows  from  the  foregoing 
views  that  the  Municipal  Assembly  had  no  power  to  disregard  the  regula- 
tions prescribed  in  the  Act  of  January  16th,  1860. 

The  act  of  1860  was  thus  held  to  be  an  existing  and  unrepealed 
law,  binding  upon  the  city  of  St.  Louis.  But  when  precisely  the 
same  question  was  presented  to  the  court  some  eight  years  later 
this  early  case  was  overruled.1  Referring  to  argument  there  em- 
ployed, the  court  said : 

Tested  by  the  rules  of  logic,  this  case  is  this :  The  question  is  was  the 
Act  of  1860  repealed  by  the  adoption  of  the  charter?  The  charter  was 
required  to  be  in  harmony  with  and  subject  to  the  Constitution  and  laws 
of  Missouri.  The  Act  of  1860  is  a  law  of  the  state  of  Missouri.  Therefore 
the  Act  of  1860  was  not  repealed  by  the  charter.  This  is  reasoning  in  a 
circle,  but  it  does  not  meet  or  decide  the  question  presented. 

Turn  the  proposition  around  and  the  other  side  of  it  is :  In  1860,  when 
the  legislature  alone  had  the  power  to  legislate  as  to  the  streets  of  St. 
Louis,  an  act  was  passed  prohibiting  a  street  railroad  from  being  con- 
structed parallel  to  an  existing  street  railroad  on  a  street  within  three 
blocks  of  the  existing  road.  In  1866  the  General  Assembly  of  Missouri 
amended  the  charter  of  St.  Louis  and  gave  it  sole  power  and  authority  to 
grant  the  right  to  any  person  "to  construct  street  railroads  in  any  street 
of  said  city  and  to  regulate  and  control  the  same  and  the  use  thereof." 
In  1875  the  Constitution  gave  the  city  the  power  to  adopt  a  charter  which 
should  supersede  all  prior  charters.  The  charter  so  adopted  gave  the  city 
the  sole  right  to  regulate  the  use  of  its  streets,  to  grant  the  right  to  con- 
struct street  railways  and  to  regulate  street  car  companies.  The  Consti- 
tution of  1875  expressly  prohibited  the  General  Assembly  from  granting 
the  right  to  construct  or  operate  or  transfer  a  street  railway  in  any  city, 

1  State  ex  inf.  Crow  v.  Lindell  Ry.  Co.,  151  Mo.  162.     1899. 


152     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

town  or  village  of  the  State  without  its  consent.  The  question  therefore 
is,  can  the  act  of  1860  limiting  the  power  of  the  city,  stand  at  the  same 
time  and  be  made  consistent  with  the  Act  of  1866  which  conferred  the  sole 
power  and  authority  upon  the  city,  or  with  the  charter  which  gave  the 
city  the  sole  power  to  regulate  the  use  of  its  street  and  the  power  to  grant 
the  right  to  construct  street  railroads  upon  it,  or  with  section  20  of  Art. 
XII  of  the  Constitution  which  prohibits  the  General  Assembly  from 
granting  the  right  to  construct,  operate  or  transfer  a  street  railway  in  a 
city  without  its  consent  ?  Or  stated  otherwise,  can  a  prior  act  limiting 
a  right,  continue  to  exist,  when  the  Constitution  and  subsequent  acts  vest 
the  sole  power  in  the  city  and  prohibit  the  General  Assembly  from  legis- 
lating upon  the  subject  without  the  consent  of  the  city  ?  .  .  . 

But  it  is  unnecessary  to  further  elaborate  the  discussion.  It  is  demon- 
stratively plain  that  the  Act  of  1860  is  no  longer  an  existing  statute 
law,  because  it  cannot  stand  with  the  Act  of .  1866  or  with  the  provisions 
of  the  Constitution  of  1875,  and  the  ordinances  of  the  city  of  St.  Louis 
passed  in  disregard  of  it  are  not  void  as  being  inconsistent  with  it,  for 
being  itself  inconsistent  with  subsequent  acts  and  with  the  Constitution, 
it  has  ceased  to  exist,  and  hence  those  ordinances  cannot  conflict  with 
what  no  longer  exists.  The  case  of  St.  Louis  Railroad  Co.  v.  South  St. 
Louis  Railroad  Co.,  72  Mo.  67,  was  erroneously  decided  and  is  therefore 
overruled. 

One  should  not,  of  course,  too  greatly  condemn  the  court  for  its 
"circular"  reasoning  in  the  earlier  of  these  cases.  Circular  it 
unquestionably  was;  but  if  ever  there  were  constitutional  pro- 
visions which  invited  mental  processes  of  the  circular  variety, 
they  were  these  home  rule  provisions  of  the  Missouri  constitution 
of  1875. 

Be  that  as  it  may,  the  later  case  settled  the  supremacy  of  charter 
provisions  over  previously  enacted  state  laws  on  the  subject  of 
public  utility  control.  It  may  be  noted,  however,  that  even  as  to 
this  point  the  provisions  of  the  freeholders'  charter  were  appar- 
ently not  quite  equal  to  the  task  of  standing  alone.  The  declara- 
tion of  the  old  legislative  charter  of  1866  upon  this  subject  and 
another  provision  of  the  constitution  (which  did  not  relate  ex- 
clusively to  cities  under  freeholders'  charters)  were  dragged  in 
to  give  support  to  the  proposition  that  the  charter  repealed  the  law. 

Nor  was  it  expressly  or  even  impliedly  declared  that  the  control 
of  public  utilities  was  an  affair  of  local  rather  than  of  state  concern 


CONFLICT   WITH    STATE   LAWS   IN    MISSOURI       153 

—  a  matter  in  respect  to  which  charter  provisions  need  not  be 
" consistent  with"  or  " subject  to"  the  laws  of  the  state.  This 
specific  question  of  conflict  the  Missouri  courts  have  not  yet  been 
called  upon  directly  to  answer;  but  as  will  be  seen  in  a  later 
connection,1  there  is  strong  likelihood  that  it  would  be  resolved 
against  rather  than  in  favor  of  control  by  the  locality. 

It  may  be  mentioned  in  conclusion  that  numerous  provisions  of 
state  laws  dealing  with  the  subject  of  public  utilities  (some  of  which 
are  applicable  specifically  to  St.  Louis  and  others  to  cities  generally, 
and  most  of  which  antedate  the  freeholders'  charter,  though  a  few 
of  them  are  of  subsequent  enactment)  are  still  regarded  as  being 
applicable  to  that  city.2  Presumably  these  laws  do  not  seriously 
conflict  with  the  provisions  of  the  charter.  Otherwise  contest 
would  in  all  probability  have  arisen  before  this  and  their  status 
would  have  been  judically  determined. 

Does  a  State  Law  supersede  a  Charter  Provision  governing  the  Making 
of  Street  Improvements  f 

Immediately  after  the  first  freeholders'  charter  of  Kansas  City 
went  into  effect  question  arose  as  to  whether  the  provisions  of  such 
charter  relating  to  the  assessment  of  damages  and  benefits  for 
street  improvements  had  superseded  the  provisions  of  a  state  law 
upon  the  same  subject  enacted  in  1885  and  made  uniformly  appli- 
cable to  all  cities.  The  law  and  the  charter  were  in  irreconcilable 
conflict.  The  opinion  uttered  by  the  court  was  in  part  as  follows : 3 

The  first  section  of  the  enabling  act  of  March  10, 1887,  is  but  a  repetition 
of  said  section  16,  of  the  constitution,  with  some  matters  added,  of  no 
value  to  the  present  inquiry.  The  second  section  enacts:  "After  the 
expiration  of  said  thirty  days  after  the  ratification  and  adoption  of  said 
charter,  as  aforesaid,  such  charter  shall  be,  and  constitute,  the  entire 
organic  law  of  such  city,  and  shall  supersede  all  laws  of  this  state  then  in 
force,  in  terms  governing  or  appertaining  to  cities  having  one  hundred 
thousand  inhabitants,  or  more."  The  fiftieth  section  gives  such  cities 

1  Infra,  186-190. 

2  Rev.  Code  of  St.  Louis,  1907,  pp.  213-219. 

8  State  ex  rel  Kansas  City  v.  Field,  99  Mo.  352.     1889. 


154     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

exclusive  control  of  the  streets,  and  the  exclusive  power  to  vacate  streets 
and  alleys. 

.  .  .  The  proposition  made  for  relator,  that,  when  any  such  city  has 
adopted  a  charter,  it  is  out  of,  and  beyond,  all  legislative  influence,  cannot 
be  sustained.  We  held  to  the  contrary  in  the  case  of  Ewing  v.  Hoblitzelle, 
85  Mo.  76,  77. 

Subject  to  this  superior  power  of  the  legislature,  the  constitution  accords 
to  any  city  having  the  requisite  population  the  right  to  frame  and  adopt  a 
charter  for  its  own  government,  which  will  supply  its  peculiar  wants. 
Charters  thus  adopted  will,  of  necessity,  be  more  or  less  at  variance,  and 
that  they  will  be  unlike,  in  many  respects,  is  within  the  contemplation  of 
the  constitution.  It  is  also  within  the  fair  contemplation  of  the  constitu- 
tion that  a  charter  thus  adopted  may  embrace  the  entire  subject  of  mu- 
nicipal government,  and  be  a  complete  and  consistent  whole.  The  enabling 
act  of  March  10,  1887,  is  in  perfect  accord  with  the  spirit  of  the  consti- 
tution, and  it  discloses  a  well-defined  purpose  to  clear  the  legislative  field, 
and  pave  the  way  for  the  adoption  of  a  charter  which  will,  of  itself,  present 
a  complete  system  of  local  municipal  government.  It  says  the  charter 
thus  adopted  shall  be,  and  constitute,  the  entire  organic  law  of  such  city. 
Stronger  language  could  hardly  have  been  selected  to  express  the  purpose 
and  intention  which  we  have  said  is  disclosed  by  this  act.  .  .  . 

This  matter  of  assessing  damages  and  benefits  for  grading  and  regrading 
streets  naturally  falls  within  the  domain  of  municipal  government.  The 
act  of  1885,  as  amended,  is  one  of  those  laws  which  the  enabling  act 
declares  shall  be  superseded  by  the  adopted  charter.  When  the  present 
charter  of  Kansas  City  became  a  law,  the  eighth  article  suspended  and 
took  the  place  of  the  general  law  of  1885.  That  a  general  law  relating 
to  municipal  affairs  may  be  in  this  way,  in  effect,  repealed,  so  far  as  the 
particular  locality  is  concerned,  is  established  by  State  v.  Binder,  38  Mo. 
451. 

Our  conclusion  is,  that  the  charter  of  Kansas  City,  and  not  the  act  of 
1885,  as  amended,  is  the  law  by  which  damages  and  benefits  arising  from 
grading  and  regrading  streets,  in  Kansas  City,  are  to  be  assessed. 

Reading  this  case  superficially  or  looking  only  at  the  judgment 
reached,  one  might  be  inclined  to  set  it  down  as  holding  that  street 
improvements  are  a  matter  of  local  or  municipal  as  distinguished 
/  from  general  or  state  concern  and  that  laws  governing  such  a 
matter  are  not  the  kind  of  "laws"  which  freeholders'  charters 
must  be  "  subject  to."  A  close  reading  of  the  case  discloses, 
however,  that,  whether  or  not  this  idea  may  have  been  in  the 
minds  of  the  judges,  nothing  of  the  sort  was  clearly  declared.  It 


CONFLICT   WITH    STATE    LAWS    IN    MISSOURI       155 

was  " within  the  fair  contemplation  of  the  constitution"  that  a 
home  rule  charter  might  "embrace  the  entire  subject  of  municipal 
government,  and  be  a  complete  and  consistent  whole/'  and  the 
so-termed  enabling  act  was  "in  perfect  accord  with  the  spirit  of 
the  constitution."  But  apparently  the  supersedence  of  the  law 
by  the  charter  was  referable  to  this  enabling  act  rather  than  to  the 
constitution.  For  it  was  the  purpose  of  this  act  "to  clear  the 
legislative  field"  —  presumably  because  the  constitution  had  not 
done  so — "and  pave  the  way  for  the  adoption  of  a  charter" 
which  would  be  "a  complete  system  of  local  municipal  govern- 
ment." It  was  "under"  this  act,  and  seemingly  therefore  not 
directly  under  the  terms  of  the  constitution,  that  "laws,  though 
general  they  may  be,  which  relate  alone  to  the  government  of 
cities,  must  yield  to  the  provisions  of  the  adopted  charter." 

This  is  a  fair  example  of  the  lack  of  interpretative  clearness 
which  the  Missouri  court  has  so  frequently  shown  in  construing 
the  home  rule  provisions  of  the  constitution.  Obviously  if  the 
supremacy  of  the  charter  regulation  was  referable  to  the  law  rather 
than  to  the  constitution,  it  follows  that  the  scope  of  the  city'si 
independent  powers  under  these  constitutional  provisions  is  as  large 
or  as  small  as  the  legislature  may  by  law  decree,  and  that  whether | 
or  not  the  matter  of  street  improvements  "falls  within  the  domain 
of  municipal  government"  is  a  question  of  no  pertinence  whatever! 

In  the  case  of  Murnane  v.  City  of  St.  Louis,1  involving  practi- 
cally the  same  question  of  conflict  between  a  state  law  and  a  char- 
ter provision  relating  to  street  improvements,2  it  was  again  declared 
that  the  statute  in  question  did  "not  bear  upon  any  of  the  subjects 
which  concern  the  relations  of  a  city  to  the  state  or  are  authorized 
topics,  under  the  constitution,  for  general  legislation  applicable  to  St. 
Louis"  but  touched  upon  a  subject  that  "is  a  matter  strictly  of  mu- 
nicipal regulation. ' '  This  assertion,  however,  was  wholly  immaterial 
to  the  decision  of  the  case,  for  the  law  was  held  void  solely  upon  the 
ground  that  it  was  special  legislation  —  a  ruling  which,  as  we  have 
already  had  occasion  to  notice,  was  subsequently  reversed.3 

1  123  Mo.  479.     1894. 

2  In  this  case  the  charter  antedated  the  law.  *  Supra,  124. 


1 


156  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  view  of  certain  later  decisions  of  the  Missouri  court  in  which 
the  distinction  between  matters  of  general  and  matters  of  local 
concern  has  been  applied  with  a  fair  degree  of  definiteness  in  deter- 
mining what  "laws"  charter  provisions  are  " subject  to,"  there 
can  perhaps  be  no  question  that  should  any  further  case  upon  this 
subject  of  street  improvements  arise,  the  supremacy  of  the  charter 
would  be  sustained  by  direct  reference  to  the  constitutional  grant 
of  power  as  modified  or  explained  by  the  judicial  introduction  and 
application  of  this  distinction.  The  status  of  the  law  upon  this 
specific  subject  has  not,  however,  been  unmistakably  declared. 
In  spite  of  the  very  elaborate  provisions  of  the  St.  Louis  charter  of 
1876  on  the  subject  of  street  improvements,1  the  compiler  and 
annotator  of  the  city  code  of  1907  includes  under  the  caption 
"state  laws  applicable  to  St.  Louis"  a  statute  of  1899  dealing  with 
this  matter.2 

Does  a  State  Law  supersede  a  Charter  Provision  relating  to  such 
Matters  as  Parks,  Boulevards,  and  Bridges  ? 

In  1891  injunctive  relief  was  sought  in  the  case  of  the  State  ex 
rel.  Wood,  Attorney  General  v.  Schweickardt 3  to  restrain  the  city 
of  St.  Louis  from  carrying  out  an  ordinance  and  contract  leasing 
certain  buildings  in  Forest  Park  and  granting  to  the  lessee  the 
privilege  of  selling  intoxicating  liquors.  Many  points  were  raised 
to  defeat  the  ordinance,  it  being  contended,  among  other  things, 
that  it  was  in  conflict  with  an  act  of  the  legislature  approved  March 
29,  1875  —  an  act  which  antedated  the  charter.  The  court  held 
that  "if  it  be  true  that  there  is  such  conflict,  then  such  statute 
must  be  regarded  as  abrogated  under  the  express  terms  of  section 
20  of  article  9  of  the  constitution,  which  declared  that  upon  the 
adoption  of  such  scheme,  it  'shall  become  the  organic  law  of  the 
county  and  city  and  such  charter  the  organic  law  of  the  city  .  .  . 
and  supersede  the  charter  of  St.  Louis  .  .  .  and  all  special  laws 

1  Art.  Ill,  sec.  26,  ch.  2 ;  Art.  VI,  sees.  1-27. 
*  Rev.  Code  of  St.  Louis,  1907,  pp.  211-213. 
«  109  Mo.  496.     1891. 


CONFLICT   WITH   STATE   LAWS    IN    MISSOURI      157 

relating  to  St.  Louis  county  inconsistent  with  such  scheme.'"1 
But  whether  such  conflict  existed  was  of  no  moment  because  of 
the  terms  of  that  statute,  which  conferred  power  to  "regulate  .  .  . 
all  parks  .  .  .  belonging  to  the  city." 

In  the  course  of  the  opinion  it  was  declared  as  follows,  although 
the  precise  pertinency  of  the  declaration  is  not  clear : 

And  it  must  also  be  borne  in  mind  when  considering  the  point  in  hand 
and  the  force  and  effect  of  ordinance  16,002,  that,  in  relation  to  the  property 
in  question  and  the  discretionary  control  of  the  city  over  it,  it  must  be 
regarded  as  a  matter  of  purely  local  concern,  as  held  and  owned  by  the 
city  not  in  its  political  or  governmental  capacity,  but  in  a  quasi-private 
capacity  in  which  the  municipal  authorities  act  for  the  exclusive  benefit 
of  the  corporation  whose  interests  they  represent.  This  position  is  abun- 
dantly sustained  by  authority  as  shown  by  briefs  of  counsel. 

Very  definite  application  was  given  to  the  view  thus  expressed 
in  the  important  case  of  Kansas  City  ex  rel.  North  Park  District  v. 
Scarritt,2  decided  in  1894.  The  legislature  in  1893  passed  "an  act 
empowering  every  city  in  this  state  which  is  now  or  may  hereafter 
be  organized  under  and  by  virtue  of  the  provisions  of  section  16, 
article  9  of  the  constitution  of  this  state,  to  establish  and  maintain 
for  such  city  a  system  of  parks  and  boulevards,  to  be  under  the 
control  and  management  of  a  board  known  as  the  board  of  park 
and  boulevard  commissioners,  and  defining  the  powers  and  duties 
of  such  commissioners."  3  This  act  was  declared  to  be  clearly  in 
conflict  with  provisions  of  the  Kansas  City  charter,  as  amended  in 
1892,  on  the  subj  ect  of  parks  and  boulevards.  The  opinion  recited  : 

The  act  now  in  dispute  deals  with  subjects  strictly  within  the  domain 
of  municipal  government.  State  ex  rel.  v.  Field  (1889),  99  Mo.  356  (12 
S.  W.  Rep.  802.)  It  does  not  purport  to  bear  upon  the  relations  of  any 
locality  or  of  its  people  to  the  state  government. 

The  act  is  in  truth  what  it  frankly  professes  to  be,  namely,  an  amend- 
ment to  the  charter  of  cities  organized  under  the  constitutional  license 
above  quoted. 

1  This  ruling  was  wholly  out  of  harmony  with  that  laid  down  in  St.  Louis  Railroad 
Co.  v.  South  St.  Louis  Railroad  Co.,  72  Mo.  67  (1880)  —  a  case  which  had  not  at 
this  time  been  overruled.     Supra,  150.     This  case  was  not,  however,  mentioned. 

2  127  Mo.  642.     1894.  3  Laws  of  Mo.,  1893,  p.  43. 


158     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Yet  the  language  of  the  constitution  on  that  point  is,  that  a  municipal 
charter,  so  obtained,  may  be  amended  by  an  action  of  the  people  of  the 
city,  and  "not  otherwise." 

Surely  we  cannot  write  those  words  out  of  the  organic  law,  whose 
authority  it  is  our  duty  to  assert. 

It  is  quite  true  that  there  are  also  provisions  requiring  such  charters 
to  be  in  harmony  with,  and  subject  to,  the  constitution  and  laws  of  the 
state.  Those  provisions  are  general  declarations,  inserted  out  of  abun- 
dant caution,  and  intended  to  expressly  ordain  what  the  courts  would 
probably  have  held  without  them,  namely,  that  valid  laws,  passed  for  the 
state  at  large,  or  otherwise  conforming  to  the  constitution,  should  apply 
to,  and  be  fully  operative  within  such  cities. 

But  such  general  language  cannot  justly  be  considered  to  override 
and  nullify  so  specific  and  clear  a  command,  in  the  same  document,  in  regard 
to  the  mode  in  which  such  charters  may  be  amended. 

When  the  constitution  declares  how  such  amendments  may  be  made, 
and  that  they  shall  not  be  otherwise  made,  it  certainly  does  not  mean  that 
the  legislature  may  adopt  a  different  mode  for  such  amendment,  by  direct 
legislation  operating  only  upon  such  charters.  .  .  . 

The  provisions  of  the  constitution  that  have  been  cited  are  not  intended 
to  interfere  with  the  legitimate  regulation,  by  general  laws,  of  all  those 
subjects  which  concern  the  relations  of  the  state  to  the  locality,  or  to  pre- 
vent appropriate  action  by  the  lawmakers  upon  any  of  the  topics  regarding 
which  the  constitution  sanctions  legislation  to  give  practical  effect  to  its 
own  commands,  as  explained  in  Kenefick  v.  St.  Louis  (1895),  127  Mo.  1 
(29  S.  W.  Rep.  838).  No  such  subjects  or  topics  are  in  question  here. 
The  act  under  review  relates  solely  to  matters  of  internal  municipal  gov- 
ernment. It  seeks  to  amend  the  existing  charter  of  Kansas  City  in  a 
number  of  ways;  and  its  last  passages  indicate  plainly  that  such  is  its 
main  design.  It  cannot  be  supported  without  nullifying  the  guaranty 
which  the  fundamental  law  gives  in  section  16,  above  quoted,  against 
invasion  of  the  right  of  local  self-government  in  the  internal  affairs  of 
such  cities. 

Upon  a  motion  for  a  rehearing,  asked  upon  the  ground  that  the 
decision  rendered  was  not  in  harmony  with  certain  previous  ad- 
judications —  as  it  certainly  was  not  —  the  court  attempted  with 
indifferent  success  to  vindicate  its  own  consistency,  admitting, 
however,  that  "remarks"  in  some  of  the  cases  may  be  found  which 
go  further  than  the  judgments,  and  may  not  be  entirely  reconcilable 
with  this  last  ruling. 

It  will  be  observed  that  in  this  North  Park  District  case  the 


CONFLICT    WITH   STATE    LAWS    IN    MISSOURI       159 

court  had  resort  to  the  constitutional  provisions  governing  the 
amending  of  freeholders'  charters  rather  than  to  the  requirement 
that  they  should  be  " subject  to"  the  laws  of  the  state.  Instead 
of  denning  the  laws  which  such  charters  must  be  "  consistent 
with"  and  " subject  to"  —  this  being  the  clause  that  was  invoked 
to  sustain  the  statute  —  as  being  "laws"  on  subjects  of  general  or 
state  concern,  it  was  in  effect  asserted  that  such  charters  "may  be 
amended"  by  local  action  "and  not  otherwise"  as  to  matters  of 
purely  municipal  concern.  The  delimiting  phrases  are  obviously 
identical  in  purport.  The  shift  in  the  point  of  argumentative 
attack  only  illustrates  the  apparent  affection  of  the  Missouri 
court  for  "the  mazes  of  adjudication"  and  the  "labyrinth  of 
ingenious  and  divergent  reasons"  which  a  few  years  later  one  of 
the  members  of  the  court  referred  to  with  so  much  despair.1 

This  apparent  affection  is  far  more  strikingly  illustrated  by  the 
incredibly  strange  opinion  delivered  in  the  case  of  Kansas  City  v. 
Bacon.2  Precisely  the  same  statute  was  under  consideration  as 
that  reviewed  in  the  North  Park  District  case,  the  contention 
being  made  that  it  operated  to  void  certain  proceedings  to  condemn 
lands  for  park  purposes,  which  proceedings  the  city  had  taken 
under  an  ordinance  enacted  pursuant  to  a  charter  amendment  of 
1895.  It  would  certainly  seem  that  the  briefest  kind  of  reference 
to  the  former  case  would  have  sufficed  to  settle  the  controversy  in 
favor  of  the  supremacy  of  the  charter.  But  this  case  was  not  even 
mentioned!  On  the  contrary,  a  statute  the  "main  design"  of 
which  had  been  declared  in  the  North  Park  District  case  to  have 
been  "to  amend  the  existing  charter  of  Kansas  City"  was  now 
held  to  be  "not  mandatory  but  merely  permissive  or  enabling  in 
its  provisions."  The  words  of  the  act  "nowhere  require  any  such 
city  to  establish  and  maintain  a  park,  but  on  their  face  disclaim 
any  repugnancy  or  inconsistency  with  the  charter  rights  of  such 
cities,  to  acquire  land  for  parks  in  pursuance  of  their  right  to  amend 
their  charters,  which  is  a  continuing  power."  Moreover,  home 
rule  charters  "will  of  necessity  be  more  or  less  at  variance,"  and 

1  Supra,  126. 

2  147  Mo.  259.     1398. 


160     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  power  to  frame  a  charter  would  be  meaningless  if  "its  pro- 
visions must  all  be  in  hcec  verba  with  the  provisions  relating  to  the 
same  subject  in  some  other  statute  —  relating  to  cities  in  this  class." 
The  conclusion  was  reached  that  there  was  "nothing  in  the  charter 
of  Kansas  City  upon  the  subject  of  the  acquisition  of  parks  that 
places  it  out  of  harmony  with  the  constitution  and  laws  of  the 
state."  Not  a  single  word  was  said  in  support  of  the  doctrine 
that  parks  are  a  matter  of  local  concern  and  as  such  subject  to 
control  of  charter  provisions  which  the  legislature  is  incompetent 
to  amend. 

It  need  only  be  remarked  that  where  the  court  itself  gives  so 
little  respect  to  its  own  previously  uttered  views,  these  views  be- 
come scarcely  worthy  of  restatement,  to  say  nothing  of  deferential 
analysis.  The  North  Park  District  case  was  not  overruled.  It 
was  simply  forgotten  or  ignored.  Presumptively  it  still  stands 
as  law  —  if  there  is  any  clear  standing  law  in  Missouri  upon  this 
subject. 

At  the  same  term  of  court  was  decided  the  case  of  St.  Louis  v. 
Dorr  1  involving  the  validity  of  an  ordinance  prohibiting  any  busi- 
ness or  avocation  to  be  carried  on  along  a  certain  street  designated 
as  a  "boulevard."  The  ordinance  was  enacted  in  pursuance  of 
"an  act  relating  to  boulevards  in  cities  having  a  population  of 
300,000  inhabitants  or  more."  2  It  was  the  opinion  of  a  majority 
of  the  court  that  the  charter  of  St.  Louis  contained  no  general  or 
specific  provision  that  authorized  the  enactment  of  such  ordinance. 
Hence  the  act  in  question  had  to  be  regarded  as  an  "amendment" 
of  the  charter  —  an  amendment  conferring  power  upon  the  legis- 
lative authorities  of  the  city  which  the  charter  had  not  conferred. 
The  act  was  held  invalid,  in  the  first  place,  because  of  its  special 
character  —  a  ruling  which,  as  we  have  noted,  was  subsequently 
overturned.3  In  the  second  place,  following  the  North  Park 
District  case,4  the  court  held  the  act  void  as  being  an  amendment 

1  145  Mo.  466.     1898. 

*  Laws  of  Mo.,  1891,  p.  47.  8  Supra,  124. 

4  And  the  reaffirmative  decisions  of  Kansas  City  v.  Ward,  134  Mo.  172  (1896) ; 
and  Kansas  City  v.  Marsh  Oil  Co.,  140  Mo.  458  (1897) ;  infra,  174. 


CONFLICT   WITH    STATE    LAWS    IN    MISSOURI       161 

to  the  charter  concerning  a  local  affair  of  the  city.1     It  was  de- 
clared that  ''section  25  does  not  refer  to  any  distinction  between  1 
local  and  other  subjects  of  legislation;    but  sections  20  and  23* 
indicate  the  distinction  quite  clearly."  2     Parenthetically,  it  may 
be  submitted  that  none  of  the  sections  of  the  constitution  upon 
this  subject  indicate  this  distinction  " quite  clearly/'  except  that 
the  constitution  was,  without  such  judicial  interpolation,  highly 
contradictory  and  uncertain  of  meaning.     But  in  plain  point  of 
fact  the  only  thing  that  was  "quite  clear"  was  this  contradiction 
and  uncertainty,  and  the  distinction  in  question  which,  as  we  have 
seen,  had  by  no  means  been  consistently  applied  in  the  cases,  I  . . 
was  referable  wholly  to  the  law-making  competence  of  the  courts/  ' 
—  a  competence  which,  it  may  be  freely  admitted,  was  in  this! 
instance  forced  of  necessity  upon  the  judiciary. 

Referring  to  the  constitutional  pronouncement  of  section  25,  to 
the  effect  that  the  legislature  should  "have  the  same  power  over 
the  city  and  county  of  St.  Louis  that  it  has  over  other  cities  and 
counties  of  the  state, "  and  to  the  requirement  of  section  7,  to  the 
effect  that  the  "organization  and  classification  of  cities"  into  not 
more  than  four  classes  should  be  provided  "by  general  laws,"  the 
opinion  recited : 

But  the  theory  (advanced  in  this  case)  that  the  freeholders'  charter  of 
St.  Louis  may  be  amended  by  an  act  such  as  that  before  us,  while  the  free- 
holders' charters  of  cities  organized  under  section  16  may  not  be  so 
amended,  seems  at  variance  with  the  terms  of  section  25  which  is  assigned 
as  the  basis  of  that  theory.  The  charter  of  St.  Louis  is  subject  to  the  legis- 
lative power  of  the  State  to  the  same  degree  that  other  cities  and  counties 
are.  But  the  degree  to  which  the  charters  of  other  cities  are  subject  to 
amendment  by  Acts  of  the  General  Assembly  is  limited  and  defined  by 
section  7  of  the  same  article,  already  discussed  in  a  previous  paragraph  of 
this  opinion. 

That  section  imposes  positive  restrictions  on  the  power  to  deal  at  all 
with  city  charters,  obtained  since  the  Constitution  of  1875  took  effect. 

1  The  contention  was  repudiated  that  the  situation  of  Kansas  City  differed  from 
that  of  St.  Louis  in  that  the  charters  of  cities  of  more  than  100,000  might  be  amended 
by  local  action  "  and  not  otherwise,"  whereas  this  phrase  was  omitted  in  the  consti- 
tutional provision  relating  specifically  to  St.  Louis. 

2  Supra,  118-119. 


162     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Those  limitations  are  as  applicable  for  the  protection  of  the  city  of  St. 
Louis  against  legislation  upon  its  local  affairs  as  to  protect  any  other  city 
against  such  legislation. 

Legislation  on  local  topics,  properly  comprehended  in  municipal 
charters,  must  be  enacted  in  the  manner  defined  by  section  7,  by  general 
laws,  the  nature  of  which  is  indicated  explicitly,  viz. :  "So  that  all  such 
municipal  corporations  of  the  same  class  shall  possess  the  same  powers 
and  be  subject  to  the  same  restrictions."  And  the  number  of  classes  which 
the  General  Assembly  may  create  for  the  organization  of  cities  and  towns 
is  positively  limited  to  four. 

Those  safeguards  protect  all  city  charters  that  have  come  into  being 
under  the  Constitution  of  1875. 

All  of  this  is  so  hopelessly  muddled  in  its  logic  that  it  seems 
impossible  to  subject  it  to  explanatory  analysis.  One  of  the  main 
points  registered  in  the  case  was  that  "so  far  as  concerned  the 
local  affairs"  of  St.  Louis,  as  of  Kansas  City,  its  charter  " cannot 
be  amended  by  an  act  of  the  legislature/  Yet  in  the  face  of  this 
it  is  here  asserted  that  "the  charter  of  St.  Louis  is  subject  to  the 
legislative  power  of  the  state  to  the  same  degree  that  other  cities 
and  counties  are,"  and  that  that  degree  "is  limited  and  defined" 
by  the  section  of  the  constitution  guaranteeing  "general  legisla- 
tion" to  each  of  not  more  than  four  classes  of  cities.  Now  ob- 
viously the  power  of  the  legislature  over  "other  cities"  of  the  state 
included  the  power  to  amend  their  charters  (by  general  laws)  as  to 
"local"  or  any  other  "affairs."  The  truth  of  the  matter  seems 
to  be  that  in  this  case  the  court  had  run  headlong  against  the 
contradictions  of  the  constitution  on  this  subject,  and  certainly 
its  lengthy  disquisition,  appealing  with  unfailing  regularity  to  the 
clarity  of  the  provisions,  was  utterly  contradictory  as  to  its  several 
parts.  It  served,  more  than  twenty  years  after  the  constitution  was 
adopted,  only  to  add  chaos  and  confusion  to  confusion  and  chaos. 

It  has  been  noted  that  the  doctrine  of  the  Dorr  case  on  the  sub- 
ject of  the  requirement  of  general  legislation  for  St.  Louis  was 
subsequently  overruled.  It  would  seem  also  that  its  doctrine 
has  been  impliedly  overruled  as  to  the  incompetence  of  the  legis- 
lature to  amend  a  freeholders'  charter  by  granting  a  power  as  to  a 
"local  affair"  which  was  not  granted  by  the  charter  itself.  In 


CONFLICT    WITH    STATE    LAWS    IN    MISSOURI       163 

the  case  of  Haeussler  v.  St.  Louis,1  decided  in  1907,  question  was 
raised  as  to  the  authority  of  the  city  to  construct  a  bridge  across 
the  Mississippi  River.  The  point  was  not  specifically  determined 
that  this  was  a  local  affair,  although  it  was  referred  to  as  "a  public 
municipal  purpose."  The  court  found  authority  for  the  exercise 
of  this  power  in  the  charter,  but  it  located  the  principal  source  of 
such  authority  in  state  laws.  It  was  declared  without  the  slightest 
hesitation : 

This  charter  authority,  in  our  judgment,  is  but  cumulative  authority, 
for  if  section  6350  (of  the  revised  statutes)  and  the  preceding  three  sections 
mean  anything  at  all  when  supplemented  by  the  Act  of  1905,  there  is 
ample  express  authority  in  so  far  as  the  state  can  grant  it.  By  this  section 
6350,  it  was  not  necessary  to  have  express  charter  authority,  but  it  is 
sufficient  if  the  public  municipal  purpose  is  one  authorized  "by  the  general 
law  of  the  state." 

Of  course  it  might  have  been  declared  that  the  construction  of 
a  bridge  extending  beyond  the  boundaries  of  a  city  —  and  espe- 
cially when  it  reached  into  another  state  —  was  not  a  matter  of 
strictly  local  or  municipal  concern.  In  this  wise  the  opinion  might 
have  been  made  to  harmonize  with  the  second  doctrine  of  the  Dorr 
case.  But  the  fact  remains  that  no  such  declaration  was  made. 

Such,  then,  are  the  views  of  the  Missouri  court  as  to  the  power 
of  the  legislature  to  supersede  or  supplement  by  law  the  provisions 
of  a  home  rule  charter  governing  matters  pertaining  to  parks, 
boulevards,  and  bridges.  It  may  be  noted  that  in  every  case 
mentioned  (except  the  bridge  case,  where  the  charter  also  covered  I 
the  situation)  resolve  was  entered  against  the  power  of  the  legis- 
lature, but  on  what  theory  this  was  done  perhaps  only  the  courts 
of  that  state  are  competent  to  explain. 

Does  a  State  Law  supersede  a  Charter  Provision  governing  the 
Removal  of  Municipal  Officers? 

The  constitution  of  Missouri  expressly  provided  that  the  legis- 
lature should,  "in  addition  to  other  penalties,  provide  for  the 

i  205  Mo.  656.     1907. 


164  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

removal  from  office  of  ...  city  .  .  .  officers  on  conviction  of 
wilful,  corrupt,  or  fraudulent  violation  or  neglect  of  official  duty." l 
This  provision  was  effectuated  by  a  statute  enacted  in  1877  con- 
ferring the  power  of  removal  upon  the  circuit  court.  The  charter 
of  St.  Louis  declared  that  "any  elective  city  officer  may  be  sus- 
pended by  the  mayor  and  removed  by  the  council  for  cause ;  and 
any  appointed  officer  may  be  removed  by  the  mayor  and  council 
for  cause."  In  1893  application  was  made  by  the  commissioner 
of  public  buildings  of  the  city  for  a  writ  of  prohibition  to  restrain 
the  mayor  from  trying  him  on  charges  preferred  by  the  president 
of  the  board  of  public  improvements,  on  the  ground  that  the 
charter  provision  enacted  was  in  conflict  with  the  state  law  noted.2 

Relying  upon  a  case  3  in  which  it  had  been  held  that  the  special 
provisions  of  a  legislative  charter  on  the  subject  of  making  re- 
movals from  office  were  "unaffected  by  the  act  of  1877,"  the  court 
declared  that  "that  ruling  cannot  be  otherwise  regarded  than  as 
decisive  of  this  case."  Since  the  constitution  expressly  referred 
to  "other  penalties,"  and  since  this  reference  must  have  some 
meaning,  it  could  as  well  apply  to  the  provisions  of  a  city  charter 
creating  penalties  as  "to  those  created  by  the  general  assembly." 
"Surely  nothing  could  more  conduce  to  the  good  government  and 
welfare  of  the  city,  than  that  it  should  annex  'other  penalties' 
(than  those  enacted  by  the  general  laws  of  the  state)  for  the  pun- 
ishment of  its  own  officers,  than  that  incompetent  and  unworthy 
officers  should  be  removed  in  a  more  summary  way  than  that 
afforded  by  the  method  of  procedure  provided"  in  the  general  law. 

Upon  this  theory  —  somewhat  similar  it  wil  be  noted  to  that 
commonly  applied  in  determining  the  order  of  superiority  between 
police  laws  and  police  ordinances  on  the  same  subject 4  —  it  was 
held  that  the  law  in  question  was  not  in  conflict  with  the  charter 
provision  regulating  the  making  of  removals.  This  rule  was 
reaffirmed  in  the  State  ex  rel.  Heimburger  v.  Rolla  Wells,5  where 

i  Art.  XIV,  sec.  7. 

*  The  State  ex  rel.  Reid  v.  Walbridge,  119  Mo.  383.     1893. 

«  Manker  v.  Faulhaber,  94  Mo.  430.     1887. 

«  Supra,  138-141.  •  210  Mo.  601.     1907. 


CONFLICT    WITH    STATE    LAWS   IN    MISSOURI       165 

the  proposition  of  law  was  in  all  respects  identical  with  that  pre- 
sented in  the  case  just  mentioned.  And  although  this  proposition 
was  again  discussed  at  considerable  length,  nothing  new  in  point 
of  view  was  added  to  the  opinion  expressed  in  the  earlier  case. 
In  neither  case  was  it  expressly  declared  that  the  regulation  of 
removals  was  a  matter  of  purely  local  concern.  Nor  was  it  inti- 
mated whether  or  not  the  charter  would  have  superseded  the  law 
in  case  there  had  been  absolute  conflict  between  them. 

Does  a  State  Law  supersede  a  Charter  Provision  regulating  the 
Filing  and  the  Prosecution  of  Damage,  Tax,  and  Contract 
Claims  Against  the  City  Itself  f 

It  is  well  known  that  municipal  charters  commonly  contain 
certain  provisions  governing  the  rights  of  private  persons  who 
may  lodge  claims  against  the  city  for  damages  of  various  kinds, 
for  tax  rebates,  and  for  breaches  of  contract.  Of  course  it  is 
obvious  that  in  regulating  such  rights  neither  a  legislative  nor  a 
home  rule  charter  may  impose  restrictions  that  run  counter  to 
the  formidable  guarantees  of  due  process  of  law  and  the  inviola- 
bility of  contract  obligations. 

The  first  freeholders'  charter  of  St.  Louis  made  provision  that 
"  whenever  the  city  should  be  made  liable  to  an  action  for  dam- 
ages" caused  by  the  ''wrongful  acts"  of  "any  person  or  corpora- 
tion," the  "injured  party"  should  "join"  such  person  or  corpo- 
ration in  any  suit  that  he  might  institute  against  the  city ;  that 
"no  judgment  should  be  rendered  against  the  city"  unless  also 
"against  such  other  person  or  corporation  ";  and  that  the  party 
should  be  "nonsuited"  if  he  brought  action  under  such  circum- 
stances against  the  city  alone.  A  general  law  of  the  state  de- 
clared that  "every  person  who  shall  have  a  cause  of  action  against 
several  persons  .  .  .  may  bring  suit  thereon  jointly  against  all, 
or  as  many  of  the  persons  liable,  as  he  may  think  proper."  1  The 
charter  provision  and  the  state  law  were  manifestly  in  conflict. 
In  the  case  of  Badgley  v.  St.  Louis 2  appeal  was  taken  by  the  city 

1  Rev.  Stats,  of  Mo.,  1899,  sec.  1995.  2  149  Mo.  122.  1898. 


166  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

to  the  supreme  court  from  a  judgment  awarding  damages  for 
injury  resulting  from  a  street  obstruction  caused  by  dirt  piled  by  a 
private  corporation,  on  the  ground  that  the  said  corporation  had 
not,  as  required  by  the  charter,  been  " joined"  in  the  suit. 

In  Wiggin  v.  St.  Louis1  it  had  been  decided  that  the  plaintiff 
was  entitled  to  his  judgment  against  the  city  notwithstanding  the 
fact  that  the  lower  court  had  erroneously  instructed  the  jury  to 
find  that  the  party  sued  jointly  with  the  city  was  not  liable  —  a 
decision  which  certainly  rendered  the  charter  provision  of  but  little 
practical  value.  But  the  point  of  conflict  was  not  clearly  raised  and 
passed  upon  in  this  case.  In  the  Badgley  case  the  court  declared 
as  follows : 

The  Constitution  confers  upon  the  city  of  St.  Louis  power  to  adopt 
a  charter  "for  the  government  of  the  city,"  but  the  section  before  us  goes 
further.  It  undertakes  to  regulate  the  practice  in  the  courts  of  the  State 
in  cases  where  said  city  is  an  ordinary  litigant. 

Said  charter  must  be  "in  harmony  with  the  Constitution  and  laws  of 
Missouri."  This  section  repeals,  however,  pro  tanto,  the  Code  of  Civil 
Procedure  and  substitutes  one  of  its  own.  If  the  city  of  St.  Louis  can  do 
this,  it  may  likewise,  in  every  case  where  said  city  is  a  party  to  a  suit, 
supersede  by  charter  provisions,  the  change  of  venue  laws  of  the  State, 
and  those  regulating  the  manner  of  summoning  and  impaneling  juries. 
It  may  change  the  statute,  in  all  such  cases,  as  to  the  place  of  bringing 
suits,  and  the  forum  for  the  trial  of  the  same,  and  it  may  also  alter  the 
form  of  pleadings  therein.  It  has  already  attempted  to  direct  the  judg- 
ment that  may  be  rendered  and  the  manner  of  its  enforcement.  If  this 
power  exists,  it  may  in  fact  amend  any  part  of  the  Practice  Act  and  form  a 
Code  to  suit  itself.  We  are  not  prepared  to  sanction  such  a  construction 
of  the  power  conferred  by  the  Constitution  upon  our  cities  to  frame  charters 
for  their  own  government.  We  think  that  the  authority  to  make  such 
changes  in  the  Code  as  are  now  under  consideration,  is  lodged  by  the 
organic  law  of  Missouri  in  the  General  Assembly  of  the  State,  and  not  in 
any  of  its  municipalities.  If  such  legislation  is  desirable,  it  must  emanate 
from  the  proper  source. 

The  procedure  in  suits  of  the  character  of  this  one  is  not  a  matter  for 
municipal  regulation.  It  does  not  "fall  within  the  domain  of  municipal 
government."  (State  ex  rel.  v.  Field,  supra.) 

We  are  aware  that  the  General  Assembly  has  inserted  clauses  somewhat 
similar  to  this  in  charters  granted  by  it,  but  the  legislature  has  power  to 

1  135  Mo.  558.     1896. 


CONFLICT    WITH    STATE    LAWS    IN    MISSOURI       167 

change  the  Practice  Act.  The  city  has  not.  Therein  lies  the  difference. 
It  does  not  follow,  by  any  means,  that  because  the  city  is  a  party  to  an  ordi- 
nary civil  action,  it  may,  under  the  power  granted  to  provide  municipal 
government,  regulate  the  process  and  proceedings  of  the  State  courts  in 
such  cases. 

We  must,  therefore,  hold  that  the  section  of  the  charter  relied  upon  by 
appellant  forms  no  obstacle  to  plaintiff's  recovery.  The  statutes  must 
control,  and  the  trial  court  committed  no  error  in  overruling  the  objection 
to  the  introduction  of  evidence,  and  in  refusing  the  instruction  asked  by 
defendant.1 

Here,  then,  was  authority  for  the  broad  assertion  that  matters 
pertaining  to  damage  suits  against  a  city  were  matters  of  general 
or  state  concern  which  could  not  be  regulated  by  a  freeholders' 
charter  in  a  manner  contrary  to  the  laws  of  the  state.  But  in  the 
case  of  Brunn  and  Donnell  v.  Kansas  City,2  decided  ten  years 
later,  it  was  emphatically  held  —  and  with  characteristic  non- 
chalance toward  the  unguardedly  expressed  doctrine  of  the  Badg- 
ley  case  —  that  matters  pertaining  to  damage  suits  arising  under 
condemnation  proceedings  were  matters  of  strictly  municipal 
concern.  The  controversy  in  this  case  arose  over  the  fact  that 
the  charter  of  Kansas  City  provided  that,  pending  an  appeal  by 
"any  such  party  aggrieved  by  any  verdict  or  judgment  in  a  con- 
demnation proceeding,"  no  interest  should  "be  allowed  or  collected 
on  the  judgment."  3  The  state  law,  on  the  other  hand,  provided 
generally  that  interest  should  "be  allowed  on  all  money  due  upon 
any  judgment  or  order  of  any  court  from  the  day  of  rendering  the 
same  until  satisfaction  be  made  by  payment,  accord  or  sale  of 
property."  The  opinion  ran  : 

It  is  settled  law  that  when  special  charter  provisions  relating  to  pro- 
cedure in  condemnation  cases  are  not  inimical  to  the  general  scope  of  the 
policy  of  our  Constitution  and  laws,  then  such  special  provisions  govern  as 
against  the  provisions  of  general  law  —  that  is,  such  special  provisions 
may  be  likened  to  exceptions  read  into  or  grafted  on  the  general  law. 
(See  authorities,  supra.)  Again,  it  must  be  taken  as  the  accepted  doctrine 

1  [The  legislature  subsequently  enacted  the  substance  of  the  charter  provision 
into  a  state  law  applicable  to  cities  of  over  150,000  inhabitants.     Laws  of  Mo.,  1901, 
p.  78.] 

2  216  Mo.  108.     1908.  3  Charter  of  Kansas  City,  1889,  art.  10,  sec.  18. 


168     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

that  powers  granted, "and  charter  provisions  adopted  pursuant,  relating 
to  the  exercise  of  the  right  of  eminent  domain  by  a  city  of  the  class  of 
Kansas  City  in  establishing  parks,  boulevards  and  streets,  pertain  pe- 
culiarly to  the  domestic  municipal  affairs  of  such  city  and  therefore  come 
within  the  purview  of  its  powers  freed  from  interference  by  the  Legislature, 
so  long  as  such  provisions  do  not  contravene  the  general  policy  of  our  laws 
and  Constitution.  In  fine,  the  constitutional  idea  was  that  charters  under 
consideration  should  present  a  complete  scheme  of  local  self-government 
and  that  where  their  provisions  conflict  with  the  general  statutes  on  a 
merely  municipal  regulation  (such  as  condemnation  proceedings  are  held 
to  be)  the  charter  provisions  should  control ;  and  it  has  been  held  that  the 
constitutional  plan  for  amending  charters  (sec.  16,  art.  9),  which  directs 
that  they  shall  be  amended  by  a  vote  of  the  people  "and  not  otherwise" 
is  mandatory  and  forbids  the  regulation  and  direction  of  purely  municipal 
affairs  by  act  of  the  legislature.  (Kansas  City  v.  Scarritt,  127  Mo.,  supra.} 

In  a  somewhat  pathetic  effort  to  put  strength  and  vitality  in  the 
weak-kneed  and  retrogressive  opinion  delivered  in  the  already 
considered  case  of  Kansas  City  v.  Bacon,1  the  court  went  on  to 
assert  and  explain  in  many  words  that  such  was  the  "  undeniable 
doctrine"  of  this  case.  With  due  respect,  however,  this  was 
palpably  not  the  undeniable  doctrine  of  the  Bacon  case,  as  we 
have  already  had  occasion  to  note.  Under  the  guise  of  giving 
" point  to  the  discussion"  of  that  case  the  court  simply  read  into 
it  a  view  which  was  nowhere  expressed  or  even  intimated  in  the 
opinion  that  was  handed  down.  But  this  is  merely  to  show  un- 
necessary irritation  over  the  court's  vacillating  pronouncements. 
The  point  of  importance  is  that  matters  relating  to  a  particular 
kind  of  damage  suits  —  those  arising  out  of  condemnation  pro- 
ceedings —  were  here  declared  to  be  so  strictly  local  in  character 
that  charter  provisions  upon  the  subject  took  precedence  over  a 
state  law  of  the  most  general  character  —  a  law  applicable  to 
monetary  judgments  of  any  and  every  description. 

In  Barber  Asphalt  Paving  Co.  v.  Ridge2  the  issue  at  bar  was 
whether  the  city  could  by  charter  provision  "deprive  an  abutting 
property  owner  of  his  right  to  plead  a  lawful  defense  to  a  suit  to 
enforce  the  lien  of  a  tax  bill  against  his  property  because  he  had 
not  filed  a  written  statement  of  his  defenses  before  the  board  of 

i  Supra,  159.  f  169  Mo.  376.     1902. 


CONFLICT   WITH   STATE    LAWS    IN    MISSOURI       169 

public  improvements  within  sixty  days  after  said  tax  bill  was 
issued."  It  was  held  that  this  was  to  deprive  the  owner  of  his 
property  without  due  process  of  law  —  a  ruling  which  had  also 
been  applied  against  a  state  law  of  similar  purport.1  This  deci- 
sion was  reaffirmed  in  Barber  Asphalt  Paving  Co.  v.  Munn,2  and 
in  Curtice  v.  Schmidt.3  The  point  determined  in  these  cases 
is  of  no  great  significance  in  this  connection  in  view  of  its  having 
been  laid  directly  upon  the  guarantee  of  due  process  of  law. 
Moreover,  the  fact  that  the  city  was  a  home  rule  city  had  no 
particular  bearing  upon  the  issue.  The  legislature  could  not 
have  incorporated  the  provision  in  question  into  a  legislative 
charter. 

It  must  be  remembered,  of  course,  that  the  city  or  the  pur- 
chaser of  a  tax  bill  is  the  plaintiff  in  such  cases,  the  property 
owner  being  the  defendant.  There  is  certainly  some  distinction 
between  a  requirement  that  imposes  upon  a  person  "attacked" 
by  the  city  itself  the  duty  of  presenting  to  an  administrative 
authority  his  defenses  within  a  limited  time  and  a  requirement 
that  a  person  who  himself  initiates  an  action  against  a  city  shall 
be  under  certain  time  limit  obligations.  Thus  the  doctrine  of  the 
cases  here  noted  could  not  be  applied  to  defeat  a  charter  provi- 
sion demanding  that  a  person  asking  damages  as  a  result  of  some 
public  improvement  undertaken  or  as  a  result  of  injury  due  to 
negligence  on  the  part  of  the  city  should  file  his  complaint  within 
so  many  days.4  This  refined,  though  doubtless  supportable,  dis- 
tinction must  be  borne  in  mind. 

The  case  of  the  State  ex  rel.  Gavigan  v.  Dierkes  5  arose  out  of 
an  action  taken  by  one  chamber  only  of  the  municipal  assembly 
of  St.  Louis  in  appointing  an  investigatory  committee  with  power 
to  employ  a  paid  clerk.  The  charter  of  the  city  6  declared  that 
"  all  contracts  relating  to  city  affairs  shall  be  in  writing,  signed 

1  Spurlock  v.  Dougherty,  81  Mo.  171  (1883) ;    Mason  v.  Crowder,  85  Mo.  526 
(1885). 

2  185  Mo.  552.     1904.  3  202  Mo.  703.     1906. 

4  On  this  point,  see  the  apparently  contrary  view  that  was  expressed  by  the 
California  court,  infra,  340-342. 

6  214  Mo.  578.     1908.  •  Art.  16,  sec.  7. 


170     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

and  executed  in  the  name  of  the  city,  by  the  officer  authorized  to 
make  the  same;  and  in  cases  not  otherwise  directed  by  law  or 
ordinance,  such  contracts  shall  be  made  and  entered  into  by  the 
comptroller,  and  in  no  case  by  the  assembly  or  any  committee 
thereof."  It  was  held,  in  the  first  place,  that  the  relator  in  the 
case  —  the  clerk  who  sued  to  recover  the  amount  of  his  salary  - 
was  not  an  " officer"  of  the  city  because  an  "office"  could  be 
established  only  by  ordinance  passed  by  both  chambers  of  the 
assembly.  This  position,  therefore,  if  it  had  any  legal  standing 
at  all  rested  only  upon  a  contractual  basis.  But  it  was  obvious 
that  no  contract  had  been  entered  into  in  the  manner  prescribed 
by  the  charter. 

It  would  seem  that  this  determination  would  have  been  fully 
sufficient  to  answer  in  the  negative  the  contention  that  was  made. 
But  the  court,  in  addition  to  considerable  discussion  of  general 
principles  underlying  the  " spirit  and  letter  of  our  law,"  referred 
to  a  section  of  the  revised  statutes  of  the  state  which  regulated 
in  a  general  way  the  manner  in  which  cities  and  other  municipal 
corporations  might  enter  into  contracts  and  declared  as  follows : 

We  think  that  inasmuch  as  relator  was  not  a  public  official,  but  a 
private  citizen,  before  there  could  be  a  valid  and  binding  contract  between 
him  and  the  city,  such  contract  must  be  one  duly  authorized  by  law  and 
duly  entered  into  in  writing  by  the  properly  constituted  authorities.  In 
other  words,  the  relator  being  a  mere  alleged  contractor  for  services  with 
the  city,  the  provisions  of  section  6759,  Revised  Statutes,  1899,  fully  apply r 
as  well  as  the  provision  of  the  city  charter  above  quoted. 

There  was  in  fact  here  no  question  of  conflict  between  the  state 
law  and  the  charter  provision  governing  the  making  of  municipal 
contracts.  Nor  did  the  court  expressly  declare  that  in  case  there 
had  been  such  conflict  the  statute  would  have  controlled.  But 
if  the  regulation  of  the  legal  process  of  making  contracts  was  a 
matter  of  local  as  distinguished  from  state  concern,  it  is  difficult 
to  see  why  the  state  law  was  referred  to  at  all  (the  charter  provi- 
sion having  been  ample  to  settle  the  controversy)  or  why  it  was 
declared  that  the  provisions  of  such  law  " fully  apply"  as  well  as 
those  of  the  charter. 


CONFLICT   WITH   STATE    LAWS   IN    MISSOURI       171 

From  the  adjudicated  cases  it  is  quite  impossible  to  describe 
in  general  terms  the  state  of  the  law  in  Missouri  upon  the  subject 
of  the  relative  rank  of  statutory  and  home  rule  charter  provisions 
regulating  the  rights  of  persons  in  the  prosecution  of  damage,  tax, 
and  contract  claims  against  the  city.  The  most  that  can  be  said 
is  that  the  principles  are  not  completely  and  clearly  established. 

.  As  was  said  at  the  opening  of  our  discussion  of  the  conflicts  that 
have  arisen  in  Missouri  between  state  laws  and  charter  provisions, 
no  very  satisfactory  conclusions  as  to  the  settled  state  of  the  law 
can  be  drawn  from  the  adjudicated  cases.  Beyond  question  the 
framers  of  the  constitution  prepared  for  the  courts  a  difficult  task. 
In  a  general  way  it  may  be  said  (1)  that  the  latter  first  applied  the 
rule  that  any  law  of  general  applicableness  to  a  class  of  cities, 
no  matter  what  its  subject  might  be,  would  supersede  a  contrary 
charter  provision ;  (2)  that  they  ultimately  threw  overboard  this 
requirement  of  general  applicableness  so  far  as  the  two  home  rule 
cities  of  the  state  were  concerned;  and  (3)  that  they  at  length 
read  into  the  provision  of  the  constitution  the  qualification  that 
the  laws  to  which  charter  provisions  must  be  subject  were  laws 
dealing  with  subjects  of  general  as  distinguished  from  local  con- 
cern. But  the  cases  in  which  this  latter  distinction  was  applied 
stand  side  by  side  with  earlier  cases,  never  overruled,  in  which  no 
such  distinction  was  mentioned.  Moreover,  even  subsequent  to 
its  first  introduction  this  distinction  has  not  been  applied  with 
complete  consistency,  while  the  pendulum  of  decision  has  swung 
without  much  regularity  from  liberality  to  narrowness  of  view. 
As  a  result  of  all  this  the  law  of  home  rule  in  Missouri  is  in  a  woeful 
state  of  uncertainty  on  many  points.J 


CHAPTER  VI 

HOME    RULE    IN    MISSOURI  — THE    SCOPR   OF     THE 
CITY'S  POWERS  IN  FRAMING  A   CHARTER 

WHOLLY  apart  from  all  consideration  of  the  difficulties  arising 
out  of  conflicts  between  state  laws  and  charter  provisions  is  the 
question  of  the  powers  which  a  city  may  confer  upon  its  own 
government  by  its  charter.  The  constitution  grants  the  power  to 
frame  a  "charter  for  its  own  government."  x  Obviously  the  city 
must  ab  initio  decide  for  itself  the  scope  of  powers  that  may  with 
" legal"  propriety  be  included  in  a  municipal  charter.  But  it  is 
easy  to  see  that  differences  of  opinion  might  arise  over  the  question 
whether  this  or  that  power  of  government  is  or  is  not  appropriate 
to  a  charter  for  the  government  of  a  city. 

Whether  a  question  of  conflict  or  merely  a  question  of  power 
shall  be  raised  in  any  controversy  depends  almost  wholly  upon 
whether  the  legislature  has  crossed  or  occupied  a  particular  field 
by  state  law.  If  a  contrary  state  law  exists  upon  the  subject  in 
hand,  the  more  natural  question  to  be  raised  is  one  of  conflict. 
In  the  absence  of  such  law,  however,  if  any  dispute  arises  it  is  over 
the  competence  of  the  city  to  deal  with  the  particular  subject  in 
any  wise  within  the  local  charter.  The  existence  or  non-existence 
of  state  laws  in  conflict  with  charter  provisions  determines  the 
nature  of  the  contention  that  is  made ;  and  this  accounts  for  the 
fact,  which  will  be  noted  in  the  course  of  this  study,  that  contro- 
versies over  similar  subjects  have  in  the  same  state  or  in  different 
states  sometimes  involved  questions  of  conflict  and  at  other  times 
merely  questions  of  power. 

1  Supra,  121.  The  St.  Louis  provision  calls  it  "a  charter  for  the  government  of 
the  city." 

172 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     173 


May  the  City  exercise  the  Taxing  and  Eminent  Domain  Powers? 

It  has  already  been  pointed  out  that  the  rulings  of  the  Missouri 
courts  in  cases  involving  conflicts  between  state  laws  and  charter 
provisions  on  the  subject  of  taxes  and  licenses  were  largely  in  favor 
of  the  supremacy  of  the  former.1  But  manifestly  the  power  to 
frame  a  charter  would  be  less  than  nothing  if  the  city  could  not, 
within  the  requirements  of  state  laws,  exercise  any  of  the  financial 
powers  necessary  to  carry  on  the  government.  This  patent  fact  was 
recognized  by  the  court  in  the  early  case  of  the  City  of  St.  Louis  v. 
Sternberg,2  where  the  contention  was  made  that  the  city  could 
not  levy  a  license  tax  upon  lawyers  because  the  taxing  power  had 
not  been  specifically  conferred,  reliance  being  placed  upon  the  long- 
established  rule  that  the  grant  to  a  municipal  corporation  of  power 
to  levy  taxes  is  not  to  be  implied.  Answering  this  contention  and 
referring  to  the  home  rule  provisions  of  the  constitution,  the  court 
declared : 

It  is  clear,  we  think,  from  these  sections,  that  it  was  the  intention  of 
the  framers  of  the  constitution  that  the  city  of  St.  Louis  might  adopt  as 
its  organic  law  a  charter  containing  any  and  all  the  provisions  then  in  its 
charter,  and  such  other  provisions  as  would  not  be  inconsistent  with  the 
constitution  and  laws  of  the  state.  .  .  . 

As  neither  state,  county,  nor  municipal  government  can  be  maintained 
without  revenue,  and  as  revenue  cannot  be  raised  without  the  exercise 
of  the  taxing  power  in  some  form,  it  would  follow  as  the  logical  result  of 
defendant's  theory  that  St.  Louis  would  be  practically  left  without  any 
government.  ...  It  must  be  presumed  that  the  framers  of  the  consti- 
tution had  in  their  minds  the  fact  that  it  was  wholly  impossible  to  conduct 
a  city  government  in  a  city  like  St.  Louis  without  the  power  of  taxation 
being  vested  in  those  charged  with  conducting  such  government.  The 
right  to  adopt  a  charter  necessarily  implied  the  right  to  put  in  it  such 
provisions  as  would  enable  the  city  to  maintain  its  government.  .  .  . 
Under  the  theory  of  defendant  the  city  of  St.  Louis,  after  the  adoption  of 
the  charter,  would  have  a  charter  without  its  bestowing  any  powers,  rights 
or  privileges,  a  legislative  assembly  without  power  to  pass  laws  or  ordi- 
nances, a  city  with  hundreds  of  thousands  of  inhabitants  without  any 
municipal  government,  charged  with  the  payment  of  the  park  tax  and  the 
debt,  both  of  the  city  and  county  of  St.  Louis,  without  authority  to  impose 

1  Supra,  133.  2  69  Mo.  289.     1879. 


174     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

taxes  to  raise  revenue  to  pay  either  the  one  or  the  other.  We  cannot  give 
our  assent  to  an  interpretation  of  the  sections  of  the  constitution  we  have 
adverted  to  which  would  bring  such  results,  nor  do  we  believe  them  to  be 
susceptible  of  such  meaning.  .  .  . 

It  matters  not  whether  the  ordinance  assailed  was  passed  as  a  police 
regulation  or  otherwise.  The  question  is  one  of  power,  and  whether  the 
provision  of  the  charter  authorizing  the  passage  of  such  an  ordinance  was 
in  conflict  with  either  the  constitution  or  laws  of  the  state.  We  think  it 
does  not  conflict  with  either.  Under  the  constitution  the  imposition  of  a 
license  tax  on  lawyers  has  been  held,  as  we  have  shown,  to  be  a  legitimate 
exercise  of  the  taxing  power  on  the  part  of  the  state,  and  the  charter  pro- 
vision does  not,  therefore,  conflict  with  it,  nor  does  the  mere  fact  that  the 
General  Assembly  has  not  exercised  such  power  by  passing  a  general  law 
requiring  all  lawyers  to  pay  a  license  tax,  and  imposing  a  fine  on  every 
one  practising  as  such  without  a  license,  create  a  conflict  between  the 
charter  provision  and  the  ordinance  passed  in  virtue  of  it  and  any  law 
of  the  state.  If  the  General  Assembly  should  pass  a  law  declaring  that 
no  license  should  be  required  of  lawyers  by  any  municipal  corporation  in 
the  state,  then  such  conflict  would  exist  between  the  charter  provision 
and  the  law;  and  section  25,  article  9,  of  the  constitution  would  apply 
and  the  argument  of  defendant  that  the  charter  provision,  not  being  in 
harmony  with  the  law  of  the  state,  was,  therefore,  obnoxious  to  that  sec- 
tion, would  have  force. 

It  will  be  noted  that  it  was  not  declared  in  this  case  that  a  license 
tax  on  business  was  a  municipal  as  distinguished  from  a  state 
affair.  Nor  was  the  clear  implication  that  a  state  law  prohibiting 
the  tax  in  question  would  operate  to  void  the  charter  provision 
rested  upon  this  distinction  ;  for  it  will  be  recalled  that  such  distinc- 
tion was  not  introduced  into  the  Missouri  decisions  on  home  rule 
questions  until  a  much  later  date.  It  cannot  be  said,  therefore, 
that  the  opinion  uttered  lends  unmistakable  support  to  the  view 
that  a  freeholders'  charter  may  contain  provisions  dealing  with 
matters  of  state  concern. 

The  doctrine  of  the  Sternberg  case  was  reaffirmed  in  City  of  St. 
Louis  v.  Bircher,1  no  additional  point  of  importance  being  recorded. 

In  Kansas  City  v.  Marsh  Oil  Co.,2  the  court  was  asked  to  rule  that 
the  city  could  not  exercise  the  power  of  eminent  domain  because 
such  power  had  not  been  conferred.  The  court  answered  that  while 

*  76  Mo.  431.     1882.  *  140  Mo.  458.     1897. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     175 

it  was  "not  pretended  that  the  power  is  inherent  in  a  municipality 
created  by  the  state,"  but  is  a  power  that  must  be  "  conferred," 
yet  the  power  might  be  conferred  as  well  by  the  constitution  upon 
home  rule  cities  as  by  the  legislature  upon  legislative  charter  cities. 
The  opinion  asserted : 

The  authorities  cited  by  the  learned  counsel  for  defendant  as  to  the 
necessity  of  a  grant  of  power  have  no  application  to  a  city  charter,  which 
derives  the  power  of  condemnation  of  lands  for  public  purposes  directly 
from  the  organic  law  of  the  State  in  such  unequivocal  terms.  It  is  not 
a  matter  of  inference,  but  a  direct  grant  of  the  necessary  power.  But 
that  there  might  not  be  the  semblance  of  a  doubt  of  the  power  of  the  city 
to  exercise  eminent  domain  for  such  purposes  the  General  Assembly  of 
this  State  passed  an  enabling  act  which  was  approved  March  10,  1887 
(Laws  of  Mo.,  1887,  p.  42),  by  which  cities  of  over  one  hundred  thousand 
inhabitants  were  authorized  to  adopt  charters,  "for  their  own  govern- 
ment," "in  harmony  with  and  subject  to  the  Constitution  and  laws  of 
this  State."  Section  52  of  that  act  provides  that  it  shall  be  lawful  for  any 
such  city  to  acquire  and  hold  by  gift,  devise,  purchase  or  by  the  exercise 
of  the  power  of  eminent  domain,  lands  for  public  use,  etc. 

Upon  legal  principles  it  cannot  be  seen  what  efficacy  there  was  in  this 
legislative  act.  The  power  with  its  limitations  had  been  previously  con- 
ferred by  the  people  of  the  State  and  it  was  not  within  the  power  of  the 
legislature  to  curtail  it.  That  the  people  of  Missouri  in  their  sovereign 
capacity  and  by  their  organic  law,  could  delegate  to  the  people  of  a  munic- 
ipality this  power  to  frame  a  charter  for  its  own  local  government,  as  to 
matters  falling  properly  within  municipal  regulation,  we  have  no  doubt 
whatever.  Such  a  right  is  entirely  in  accord  with  the  genius  of  our  insti- 
tution, bringing  the  regulation  and  government  of  local  affairs  within  the 
observation  of  those  who  are  to  be  affected  thereby,  and  at  the  same  time 
preventing  the  officious  and  selfish  intermeddling  with  the  charters  of  our 
cities,  without  the  knowledge  of  those  whose  rights  are  affected. 

In  marked  contrast  was  this  declaration  as  to  the  superfluous- 
ness  of  the  " enabling  act"  upon  this  subject  with  the  apparent 
reliance  which,  as  we  have  seen,1  the  court  put  upon  this  act  to 
sustain  the  provisions  of  the  Kansas  City  charter  in  respect  to  the 
matter  of  street  improvements  where  a  question  of  conflict  with 
statute  law  was  raised.  Here,  it  is  true,  was  no  case  of  conflict ; 
nor  was  it  expressly  declared  that  a  state  law  regulating  the  exer- 

i  Supra,  153-155. 


176     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

else  of  the  power  of  eminent  domain  would  not  have  superseded 
a  contrary  charter  provision.  But  street  improvements  were  not 
held  to  be  inherently  a  matter  of  local  concern,  while  eminent 
domain  —  a  power  closely  related  to  street  improvements  —  was 
here  declared  to  be  a  matter  "falling  properly  within  municipal 
regulation."  Taken  as  a  whole  the  cases  are  certainly  far  from 
harmonious. 

Attention  should  doubtless  be  directed  to  the  fact  that  the  above 
mentioned  cases  dealing  with  the  financial  competence  of  home  rule 
cities  involved  only  the  exercise  of  powers  customarily  conferred 
upon  cities.  What  might  have  been  the  attitude  of  the  courts 
toward  the  validity  of  a  charter  provision  establishing  the  single 
tax,  or  the  principle  of  excess  condemnation,  or  some  other  more 
unusual  financial  policy,  it  is  impossible  to  say. 

Has  the  City  the  Power  to  enact  Police  Ordinances? 

The  power  to  enact  police  ordinances  is  one  of  the  time-honored 
functions  of  the  city  corporation.  Attention  has  already  been 
called  to  the  fact  that  cases  of  conflict  between  police  laws  of  the 
state  and  police  ordinances  of  home  rule  cities  have  been  determined 
in  Missouri  by  the  application  of  precisely  the  same  general  prin- 
ciple that  is  commonly  applied  in  the  settlement  of  those  not  in- 
frequent conflicts  that  occur  between  such  laws  and  the  police 
ordinances  enacted  by  a  city  under  a  legislative  charter.1  Indeed 
it  would  seem  that  of  all  the  possible  subjects  of  municipal  control 
less  difficulty  should  arise  over  the  exercise  of  the  police  powers 
than  over  any  other,  for  the  manifest  reason  that  a  long-established 
precedent  exists  for  the  concurrent  exercise  of  such  powers  by  both 
the  state  and  the  city  and  there  is  a  fairly  established  principle 
according  to  which  conflicts  of  provision  are  adjusted. 
,|  The  police  power  is  usually  regarded  as  " inherently"  a  state 
'-rather  than  a  municipal  power.  The  municipality  enjoys  only 
such  parts  of  this  power  as  are  expressly  or  impliedly  conferred.2 

1  Supra,  138-141. 

1  A  few  somewhat  recent  cases  involving  the  exercise  of  specific  powers  by  cities 
have  been  decided  upon  what  appears  to  be  the  ground  that  these  powers  were 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     177 

It  would  nevertheless  have  been  grotesque  had  the  courts  declared 
that  because  of  this  fact  a  city  framing  a  home  rule  charter  might 
not  provide  for  the  exercise  of  police  powers.  Such  a  declaration 
has  never  been  made  by  any  court  and  has  probably  never  been 
thought  of  by  any  one. 

In  addition  to  the  question  already  discussed  of  conflicts  between 
state  laws  and  municipal  ordinances  of  a  police  nature,  attention 
may  be  directed  to  one  or  two  other  points  that  illustrate  the  sim- 
ilarity between  home  rule  and  legislative  charter  cities  in  respect  to 
this  matter.  In  the  first  place,  although  it  might  have  been  expected 
that  cities  endowed  with  the  authority  to  frame  their  own  charters 
would  have  conferred  upon  their  primary  legislative  bodies  power  to 
enact  by-laws  or  ordinances  for  the  governance  of  the  city  in  gen- 
eral terms,  the  fact  is  that  boards  of  freeholders  or  charter  conven- 
tions have  seldom  adopted  any  such  policy.  They  have  for  the 
most  part  blindly  —  and  it  would  seem  somewhat  stupidly  — 
followed  the  old  legislative  practice  of  enumerating  the  powers  of 
the  council  in  great  detail.1  In  this  respect  the  charters  of  St. 
Louis  and  Kansas  City  were  not  exceptional.  Now  it  cannot  be 
too  greatly  emphasized  that  in  seeking  to  determine  the  compe- 
tence of  one  of  these  cities  to  enact  a  particular  ordinance  the 
courts  have  invariably  examined  the  provisions  of  the  charter  with 
the  end  in  view  of  ascertaining  whether  the  power  in  question  was 
conferred  by  the  charter.  In  the  absence  of  charter  provision  ex- 
pressly or  impliedly  in  point  they  have  never  held  that  the  power 
was  conferred  directly  by  the  home  rule  provisions  of  the  con- 
stitution. In  other  words,  the  theory  as  to  the  powers  of  municipal 
legislative  bodies  under  these  state  provisions  embodying  the  "fed- 
eral" idea  as  between  the  city  and  the  state  has  not  been  the  same 
as  the  theory  concerning  the  powers  of  the  state  legislatures  under 
the  clause  of  the  national  constitution  reserving  " all  other  powers" 

implied  under  a  general  police  power  enjoyed  by  cities  even  though  no  general  grant 
of  such  power  was  made  by  the  charter.  This  is  very  close  to  the  assertion  that  the 
police  power  belongs  "inherently"  to  every  city  whether  granted  or  not. 

1  Certain  exceptions  may  be  noted,  such,  for  example,  as  the  Denver  (Col.)  charter 
of  1904,  the  Colorado  Springs  and  Grand  Junction  (Col.)  charters  of  1909,  the  Spokane 
(Wash.)  charter  of  1911,  and  most  of  the  Ohio  charters  of  1913-14  (infra,  Ch.  XVII). 


178     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

to  the  states.     Under  this  reserve  clause  the  states  adopt  consti- 
tutions ;   but  even  if  these  constitutions  do  —  as  they  frequently 
appear  to  do  —  expressly  confer  certain  powers  upon  the  legisla- 
ture, the  general  rule  applied  is  that  the  legislature  enjoys  any 
Vother  power  that  is  not  expressly  or  impliedly  denied.     It  would 
(seem  that  a  somewhat  similar  rule  might  have  been  applied  to  the 
/legislative  body  of  the  home  rule  city.     The  city  is  endowed  with 
power  to  frame  "a  charter  for  its  own  government,",  just  as  the 
state  is  empowered  to  frame  a  constitution  for  its  own  government, 
although  no  such  phrase  is  used  in  the  national  constitution.     Al- 
most invariably  the  home  rule  charter  declares  that  "the  legislative 
power  of  the  city  shall  be  vested  in"  a  council,  or  otherwise  desig- 
nated assembly,  and  proceeds  to  enumerate  the  powers  which  the 
council  may  exercise.     It  has  been  invariably  held  that  the  state 
legislature,  under  the  grant  of  the  "legislative  power  of  the  state," 
enjoys  all  powers  not  expressly  or  impliedly  denied  to  it  by  the 
national  and  the  state  constitution  —  this  competence  being  in 
effect  derived,  no  matter  how  else  it  may  appear,  from  the  reserve 
clause  of  the  federal  constitution,  which  does  not  mention  the  state 
legislature  but  only  the  "states."     By  a  parity  of  reasoning  why 
might  it  not  have  been  held  that  the  legislative  body  of  the  city 
enjoys,  under  the  grant  of  the  "legislative  power  of  the  city"  all 
powers  not  expressly  or  impliedly  denied  to  it  by  (1)  the  national 
constitution,  (2)  the  state  constitution,  and  (3)  such  laws  of  the 
state  as  the  constitution  subjects  it  to  the  control  of  —  this  compe- 
tence being  derived  from  the  constitutional  clause  conferring  power 
to  frame  a  charter  for  its  own  government,  which  clause  does  not 
mention  the  city  legislature  but  only  "cities  ?  "     It  may  be  urged 
that  a  difference  undermining  the  fitness  of  this  comparison  lies 
in  the  fact  that  state  constitutions  have  not  commonly  enumerated 
the  powers  of  state  legislatures,  while  municipal  charters  have 
commonly  detailed  the  powers  of  city  councils.     But  it  may  be 
rejoined,  first,  that  an  important  rule  of  law  like  this  should  have 
more  substantial  basis  than  the  mere  neglect  of  the  framers  of  the 
constitution  to  make  an  enumeration  if  such  was  legally  neces- 
sary ;  and  second,  that  the  difference  noted  is  in  any  case  only  one 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     179 

of  degree;  and  third,  that  not  all  municipal  charters,  whether 
home  rule  l  or  legislative,2  do  in  point  of  fact  specify  the  powers 
of  the  council  in  detail.  It  may  be  that  even  as  applied  to  state 
legislatures  the  rule  here  in  question  is  open  to  debate  as  to  its 
foundation  in  logical  reasoning.  But  it  would  certainly  seem  to 
be  very  nearly  as  reasonable  in  one  case  as  in  the  other. 

The  fact  is,  however,  that  no  such  rule  has  been  applied  by  the 
courts  anywhere.3  On  the  contrary  the  well-known  rule  of  some- 
what strict  construction  of  the  terms  of  the  charter  has  been  applied 
to  determine  the  powers  of  the  legislative  bodies  of  home  rule  cities. 
One  or  two  illustrations  will  suffice.  Thus  it  has  been  held  that  an 
ordinance  prohibiting  the  sale  of  coal  unless  the  load  had  been 
"weighed  by  a  weigher  approved  by  the  mayor  and  authorized  by 
law  to  weigh  the  same"  was  a  valid  exercise  of  the  charter  powers 
"to  license,  tax,  and  regulate  retailers,"  "to  regulate  and  establish 
standards  of  weights  and  measures  to  be  used,"  and  to  provide 
"for  the  inspection  and  weighing  or  measuring  of  hay  or  stove  coal, 
charcoal,  firewood,  and  all  other  kinds  of  fuel."  4  So  an  ordinance 
"making  it  a  misdemeanor  for  any  person  thereafter  to  erect, 
build  or  establish  or  maintain  within  the  city  limits  of  said  city  any 
dairy  or  cow  stable  without  having  first  obtained  permission"  was 
validly  enacted  under  the  power  "  to  prohibit  .  .  .  cow  stables  and 
dairies  .  .  .  within  prescribed  limits."  5  In  the  course  of  the 
opinion  rendered  in  this  case  the  somewhat  startling  declaration 
was  made  that  "as  the  grant  in  the  charter  is  express,  we  are  re- 
lieved from  any  discussion  to  demonstrate  that  the  dairy  business 
is  of  a  character  that  brings  it  within  the  police  power  of  the  state." 
Just  why  the  expression  of  the  charter  should  relieve  the  court  of 
this  necessity  does  not  appear. 

1  Supra,  177,  note  1. 

2  The  legislative  charter  of  cities  of  the  first  class  in  Kentucky  (applicable  only 
to  Louisville)  confers  a  general  power  upon  the  council  without  enumeration.     This 
is  certainly  exceptional. 

3  For  the  view  of  the  California  courts  on  the  police  power  conferred  upon  cities 
by  express  constitutional  provision,  see  infra,  322-333. 

4  Sylvester  Coal  Company  v.  The  City  of  St.  Louis,  130  Mo.  323.     1895. 
8  City  of  St.  Louis  ».  Fischer,  167  Mo.  654.     1901. 


180  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

On  the  other  hand,  it  has  been  held  that  an  ordinance  imposing 
a  fine  on  real  estate  agents  for  failure,  upon  order,  to  remove  or 
repair  a  building  in  an  unsafe  condition  was  void  when  the  charter 
provided  merely  for  "the  licensing,  taxing,  and  regulating  the 
business  of  real  estate  agents"  and  empowered  the  municipal 
assembly  to  "take  down  and  remove  buildings,  walls,  or  super- 
structures that  are,  or  may  become,  dangerous,  or  require  owners 
to  remove  or  put  them  in  a  safe  and  secure  condition,  at  their 
own  expense."  1  The  view  of  the  court  was  that  the  charter  con- 
ferred power  on  the  assembly  to  require  this  duty  of  owners  but 
not  of  agents. 

These  are  nothing  more  than  examples  of  the  application  to  home 
rule  charters  of  the  familiar  canons  of  construction  that  are  applied 
to  the  case  of  municipal  charters  of  the  legislative  variety.  No 
element  of  difference  is  discernible.  And  precisely  the  same  com- 
ment may  be  made  in  respect  to  the  interpretation  put  upon  so- 
called  "general  welfare"  clauses  of  charters  —  clauses  which,  in 
addition  to  the  detailed  enumeration  of  powers,  confer  incidental 
and  supplementary  powers  in  general  terms.  The  home  rule 
charters  of  St.  Louis  and  Kansas  City  have  always  contained  such 
clauses.  But  these  are  clauses  which  are  also  found  in  many  legis- 
lative charters  and  especially  in  those  of  modern  origin. 

In  the  case  of  St.  Louis  v.  Schoenbusch2  it  was  held  that  an  or- 
dinance prohibiting  cruelty  to  animals  could  be  sustained  under 
the  charter  grant  of  power  "to  pass  all  such  ordinances  ...  as 
may  be  expedient  in  maintaining  the  peace,  good  government, 
health,  and  welfare  of  the  city."  These  "general  welfare  clauses," 
said  the  court,  "are  not  useless  appendages  to  the  charter  powers 
of  municipal  corporations."  So  also  the  power  to  require  by  or- 
dinance that  the  owners  of  lots  should  prevent  the  growing  of  weeds 
a  foot  high  was  gathered  under  this  clause  as  well  as  under  the  char- 
ter authority  "to  declare,  prevent,  and  abate  nuisances"  and  "to 
secure  the  general  health  of  the  inhabitants  by  any  means  neces- 
sary." 3  On  the  other  hand,  the  power  to  regulate  telephone  rates 

1  St.  Louis  v.  Kaime  &  Bro.  Real  Estate  Co.,  180  Mo.  309.     1903. 

2  95  Mo.  618.     1888.  »  City  of  St.  Louis  v.  Gait,  179  Mo.  8.     1903. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     181 

could  be  sustained  neither  under  the  charter  power  to  "  license, 
tax,  and  regulate  all  occupations,  professions,  and  trades  not  here- 
inbefore enumerated,  of  whatever  name  and  character"  (more 
especially  since  the  power  to  fix  rates  for  the  carriage  of  persons  and 
property,  for  gas,  and  for  street  railways  was  expressly  conferred) 
nor  under  the  general  welfare  clause.1  The  point  to  be  noted  in 
this  connection  is  that  the  line  of  reasoning  followed  in  these 
cases  was  in  every  respect  identical  with  the  reasoning  employed 
by  the  Missouri  court  in  construing  similar  clauses  in  legislative 
charters.2 

Still  another  rule  of  construction  may  be  noted  in  this  connection 
as  being  applied  to  home  rule  charters  in  exactly  the  same  manner 
as  to  legislative  charters.  This  is  the  well-known  rule  which  as- 
serts the  competence  of  the  courts  to  declare  void  an  ordinance 
which  in  the  view  of  the  courts  is  unreasonable.  Thus  in  the  case 
of  St.  Louis  v.  Heitzeberg  Packing  and  Provision  Co.3  an  ordi- 
nance declaring  that  the  emission  of  " dense  black"  or  " thick  gray" 
smoke  within  the  city  limits  was  a  nuisance  was  held  invalid  al- 
though the  charter  authorized  the  municipal  assembly  to  "  declare, 
prevent,  and  abate  nuisances."  The  city  was  incompetent  "to 
declare  that  a  nuisance  which  was  not  so  in  fact"  —  a  frequently 
uttered  rule,  which  in  spite  of  its  disguise  is  obviously  equivalent 
to  the  assertion  that  the  city  cannot  make  that  a  nuisance  which 
the  courts  do  not  regard  as  such.  Such  an  ordinance,  "which  makes 
no  reasonable  allowance  for  the  regulation  of  this  smoke,  but  essays 
in  advance  of  any  known  device  for  preventing  it  to  punish  all  who 
produce  it  in  any  degree  whatever,  is  wholly  unreasonable."  The 
conclusion  was  reached  that  "  while  it  is  entirely  competent  for  the 
city  to  pass  a  reasonable  ordinance  looking  to  the  suppression  of 
smoke  when  it  becomes  a  nuisance  to  property  or  health  or  annoy- 
ing to  the  public  at  large,  this  ordinance  must  be  held  void  because 
it  exceeds  the  powers  of  the  city  under  its  charter  to  declare  and 

1  The  City  of  St.  Louis  ».  The  Bell  Telephone  Co.,  96  Mo.  623  (1888) ;  infra,  186. 

2  City  of  St.  Louis  v.  Bentz,  11  Mo.  61  (1847) ;    City  of  St.  Louis  v.  Cafferata, 
24  Mo.  94  (1856). 

3  141  Mo.  375.     1897. 


182     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

abate  nuisances,  and  is  wholly  unreasonable."  1  So  also  an  ordi- 
nance imposing  a  fine  upon  "  persons  who  shall  lounge,  stand,  or 
loaf  around  or  about  or  at  street  corners  or  other  public  places" 
was  void  because  of  its  unreasonableness.2 

On  the  whole  it  cannot  be  said  that  the  Missouri  courts  have 
looked  upon  the  exercise  of  police  powers  by  home  rule  cities  from 
any  point  of  view  that  would  not  have  been  equally  applicable  to 
cities  under  legislative  charters.  No  new  or  different  rules  of  in- 
terpretation have  been  developed  and  applied. 

Has  the  City  Power  to  regulate  Municipal  Elections? 

Attention  has  already  been  called  to  the  Missouri  cases  involving 
questions  of  conflict  between  state  laws  and  charter  provisions  deal- 
ing with  the  subject  of  elections.3  It  has  been  shown  that  while 
these  cases  are  not  wholly  clear  as  to  the  status  of  the  law,  and  while 
it  has  never  been  unmistakably  declared  that  the  regulation  of 
strictly  municipal  elections  is  a  matter  of  state  concern,  yet  in  prac- 
tice such  elections  in  St.  Louis  and  Kansas  City  have  been  con- 
ducted largely  under  state  laws. 

On  the  other  hand,  in  the  fairly  early  case  of  the  State  ex  rel. 
Attorney  General  v.  Thomas 4  views  were  expressed  which  seem  to 
indicate  that,  certainly  apart  from  any  question  of  conflict  with 
state  law,  the  regulation  of  municipal  elections  is  an  entirely  proper 
subject  for  charter  control.  In  this  case  the  specific  point  as  to 
the  power  of  a  home  rule  city  to  control  such  a  matter  in  its  charter 

1  A  law  subsequently  enacted  by  the  legislature  upon  this  subject  and  made 
applicable  to  cities  of  more  than  100,000  inhabitants  was  sustained  on  the  ground 
that  the  legislature  "in  the  exercise  of  the  police  power  may  declare  that  a  nuisance 
which  before  was  not  a  nuisance"  at  common  law  (although  apparently  the  city 
could  not  do  so),  and  on  the  further  ground  that  the  statute  provided  "that  if 
there  were  no  known  practicable  devices  or  appliances  by  which  dense  smoke  so 
generated  could  be  prevented,"  the  owners  and  managers  of  buildings  "should  not 
be  punished  therefor."     State  v.  Tower,  185  Mo.  79.     1904. 

2  St.  Louis  v.  Gloner,  210  Mo.  502  (1907.)     This  ordinance  was  also  declared 
to  be  an  unwarrantable  interference  with  the  liberty  guaranteed  by  the  due  process 
of  law  clause  of  the  federal  and  the  state  constitutions. 

8  Supra,  141  ff.  *  102  Mo.  85.     1890. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     183 

was  not  raised.  That  power  seemed  to  be  conceded,  the  principal 
contention  being  that  the  charter  did  not  confer  the  power  to  enact 
an  ordinance  providing  for  the  holding  of  the  special  election  which 
was  had.  Said  the  court : 

This  contention,  however,  cannot  stand  in  the  face  of  the  twenty- 
sixth  section  of  article  13  of  the  charter,  and  the  eighth  clause  thereof, 
providing  that:  "The  mayor  and  assembly  shall  have  power  within 
the  city,  by  ordinance  not  inconsistent  with  the  constitution  or  any  law 
of  this  state,  or  of  this  charter:  ...  To  regulate  and  provide  for  the 
election  or  appointment  of  city  officers  required  by  this  charter,  or  author- 
ized by  ordinance,  and  provide  for  their  suspension  or  removal,"  etc. 

The  object  of  this  charter  provision  is  quite  plain ;  it  bestows,  as  its 
language  imports,  sufficient  power  upon  the  lawmaking  authorities  of  the 
city  to  make  all  necessary  rules  or  laws  in  regard  to  municipal  elections, 
whether  those  elections  be  general  or  special;  whether  occurring  before 
the  expiration  of  any  official  term  of  office,  and,  therefore,  anticipatory  in 
their  nature,  or  when  occurring  after  some  regular  election  has  failed  of  its 
purpose  by  reason  of  one  or  more  of  the  various  vicissitudes  incident  to, 
and  frequently  attendant  on,  such  events.  In  short,  the  authority,  thus 
granted  to  the  legislative  department  of  the  city,  is  as  broad  in  the  limited 
sphere  of  its  operation,  as  is  a  similar  power  bestowed  by  the  constitution 
of  the  United  States  upon  Congress,  "to  regulate  commerce  with  foreign 
nations."  .  .  . 

So  here,  the  authority  thus  delegated  to  the  legislative  branch  of  the 
city  government,  to  pass  all  necessary  ordinances  in  furtherance  of  the 
object  mentioned,  is  plenary  in  its  character ;  it  is  the  power  to  prescribe 
rules  by  which  city  elections  are  to  be  governed ;  a  power  which  recog- 
nizes only  such  limitations  as  are  marked  out  by  the  constitution  or  laws 
of  this  state  or  by  some  other  provision  of  the  charter. 

There  was  here  not  the  slightest  intimation  that  the  regulation 
of  municipal  elections  was  a  matter  not  properly  governed  by 
charter  provisions.  On  the  contrary,  in  general  tenor  at  least,  the 
opinion  seemed  to  regard  the  charter  provision  in  question  as 
highly  appropriate  in  character. 

The  Kansas  City  charter  of  1889  contained  an  unusual  provision 
levying  a  poll  tax  of  two  dollars  and  a  half  upon  every  male 
resident  citizen  over  twenty-one  years  of  age  but  exempting  from 
the  payment  of  this  tax  all  those  who  cast  votes  at  the  general 
city  election.  The  provision,  therefore,  by  indirection  estab- 


184  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

lished  the  principle  of  compulsory  voting.  When  hailed  before 
the  courts  the  provision  was  held  void  and  the  following  inter- 
esting views  were  expressed : l 

It  may  be  conceded,  so  far  as  legislative  power  is  concerned,  that  this 
provision  of  the  city  charter  has  equal  authority,  within  the  limits  of 
Kansas  City,  over  its  citizens,  as  a  like  enactment  of  the  legislature  would 
have  over  the  citizens  of  the  state  at  large,  and  that  it  ought  to  be  upheld 
unless  in  conflict  with  the  constitution  of  the  United  States,  or  of  this 
state.  State  ex  rel.  v.  Field,  99  Mo.  352. 

It  may  also  be  conceded  that  the  legislative  authority  in  this  state 
has  power  to  levy  a  capitation  tax  subject  to  the  constitutional  provision 
that  the  same  shall  be  levied  ''for  public  purposes  only'*  .  .  .  and  "shall 
be  uniform  upon  the  same  class  of  subjects  within  the  territorial  limits 
of  the  authority  levying  the  tax."  .  .  . 

The  section  in  question  is  an  apt  illustration  of  the  manner  in  which 
such  a  principle  of  selection  may  be  used  for  the  purpose  of  punishment, 
under  the  guise  of  a  tax  for  "public  purposes,"  for  no  one  can  read  this 
charter  provision  as  a  whole  without  coming  to  the  conclusion  that 
its  purpose  is  to  impose  a  penalty  upon  the  voters  of  Kansas  City  for 
not  voting  rather  than  for  the  purpose  of  raising  revenue  to  maintain  a 
necessary  function  of  the  city  government.  In  fact  the  greater  part 
of  the  argument  of  the  learned  counsel  for  the  respondent  is  directed 
to  the  maintenance  of  the  proposition  that,  to  require  a  citizen  to 
vote,  under  penalty,  is  a  legitimate  exercise  of  legislative  authority  in 
this  state.  .  .  . 

The  whole  force  of  the  argument  in  these  interesting  and  instructive 
papers  [cited  by  counsel  in  support  of  the  principle  of  compulsory  voting] 
is  spent  in  the  concession  that  by  them  the  exercise  of  the  elective  franchise 
is  established  to  be  a  duty,  as  well  as  a  right  or  privilege  —  a  concession 
which  for  the  purpose  of  this  case,  may  be  made,  and  yet  the  main  proposi- 
tion remain  unestablished,  i.e.,  that  it  is  such  a  duty  as  may  be  enforced  by 
compulsory  legislation.  ... 

That  it  is  not  within  the  power  of  any  legislative  authority,  national 
or  state,  to  compel  the  citizen  to  exercise  this  sovereign  right,  seems  to 
have  been  the  common  understanding  of  our  people  from  the  beginning 
of  our  national  existence,  for,  notwithstanding  the  diligent  research  of 
counsel  for  respondent,  and  our  own  investigations  in  that  direction,  no 
other  legislative  enactment  of  the  character  of  the  one  in  hand  has  been, 
nor  do  we  believe  can  be,  found.  The  municipality  of  Kansas  City  in 
this  enactment  seems  to  have  been  the  pioneer  and  sole  adventurer  into 
this  field  of  legislation  in  this  country,  since  the  Revolution.  .  .  . 

1  Kansas  City  v.  Whipple,  136  Mo.  475.     1896. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     185 

As  no  precedent  for  such  legislation  can  be  found  in  the  history  of  the 
government,  of  course  no  adjudicated  case  can  be  found  directly  support- 
ing it,  but  we  are  cited  to  a  class  of  cases  in  which  it  is  held  that  a  citizen 
elected  to  a  public  office  may  be  compelled  to  qualify  therefor  and  enter 
upon  the  discharge  of  its  duties ;  which,  it  is  contended,  does  by  way  of 
analogy  support  it. 

It  is  seen  at  once,  however,  that  the  analogy  fails  when  we  consider 
that  the  duty  of  a  citizen  elected  by  the  sovereign  will  to  an  office  created 
by  the  sovereign  power,  is  the  duty  of  a  subject,  while  the  duty  in  question 
here  is  the  duty  of  the  sovereign  himself.  Of  like  character  with  the 
former  is  also  the  duty  of  the  citizen  when  he  is  called  on  to  bear  arms, 
serve  on  juries,  etc.  By  no  such  duties  as  these  can  the  duty  of  a  citizen 
as  an  elector  be  measured.  .  .  . 

Before  closing  the  opinion,  however,  it  may  be  well  to  notice  another 
point  made  by  counsel  for  respondent,  in  which  the  discriminative  char- 
acter of  this  legislation,  regarded  as  a  statute  imposing  a  tax,  is  sought 
to  be  avoided  by  comparing  the  provision  made  for  the  payment  of  the  tax, 
by  voting,  to  the  exemption  (sometimes  provided,  by  laws  which  have  been 
upheld)  from  a  general  poll  tax,  of  those  who  perform  public  service  in  a 
voluntary  fire  department,  or  by  working  the  public  highways,  etc. 

But  these  are  not  strictly  exemptions.  Taxes  may  be  levied  in  money 
or  in  services  having  a  money  value  to  the  public,  and  he  who  pays  in 
money  does  not  necessarily  have  to  pay  more  or  less  than  he  who  pays  in 
service,  and  vice  versa;  and  it  is  upon  this  principle  that  these  laws  have 
been  upheld.  But  who  can  estimate  the  money  value  to  the  public,  of  a 
vote?  It  is  degrading  to  the  franchise  to  associate  it  with  such  an  idea. 
It  is  not  service  at  all,  but  an  act  of  sovereignty  above  money  and  above 
price.  The  ballot  of  the  humblest  voter  in  the  land  may  mold  the 
destiny  of  the  nation  for  ages.  Who  can  say  it  will  be  for  weal  or  woe  to 
the  republic  ?  Who  that  it  is  better  that  he  should  cast,  or  withhold,  it  ? 
Who  dares  to  put  a  price  upon  it  ?  The  judgment  of  the  circuit  court  is 
reversed.  All  concur. 

We  are  not  here  especially  concerned  with  the  degree  of  success 
which  the  court  achieved  in  demonstrating  that  the  charter  provi- 
sion in  question  imposed  a  tax  that  was  in  violation  of  the  "  public 
purpose"  or  the  " uniformity"  requirements  of  the  state  constitu- 
tion, although  it  may  be  remarked  in  passing  that  these  require- 
ments appear  to  have  been  completely  lost  sight  of  in  the  discus- 
sion of  certain  abstractions  and  of  the  merits  of  a  public  policy 
of  which  the  court  obviously  disapproved  with  much  vehemence. 
The  point  of  chief  importance  in  connection  with  our  study  is  the 


186     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

i 

opening  concession  that  was  made,  to  the  effect  that  so  far  as  any 
question  of  power  was  concerned,  "  this  provision  of  the  city  charter 
has  equal  authority  within  the  limits  of  Kansas  City,  over  its  citi- 
zens, as  a  like  enactment  of  the  legislature  would  have  over  the 
citizens  of  the  state  at  large."  In  other  words,  there  was  no  doubt 
as  to  the  competence  of  the  city  (barring,  of  course,  a  conflicting 
state  law)  to  regulate  a  matter  like  this  —  which  may  be  said  to 
have  pertained  jointly  to  the  subjects  of  suffrage,  elections,  and 
taxation  —  unless  some  pertinent  prohibition  could  be  found  in  the 
state  constitution. 

While  the  cases  are  neither  numerous  nor  very  specifically  in 
point  —  a  fact  due  largely  to  the  absence  of  charter  provisions  on 
the  subject  of  elections  1  —  it  must  be  concluded  that  the  Mis- 
souri court  has  given  fair  expression  to  the  view  that  the  control 
of  matters  pertaining  to  elections,  at  least  in  the  absence  of  state 
law,  is  properly  included  within  the  scope  of  the  city's  power  "to 
frame  a  charter  for  its  own  government." 

Has  the  City  Power  to  regulate  Matters  pertaining   to   Privately 
Owned  Public  Utilities? 

It  has  been  pointed  out  that  the  Missouri  courts  have  never  been 
called  upon  to  determine  any  question  of  supremacy  between  a 
freeholders'  charter  provision  and  a  state  law  enacted  since  1875 
on  the  subject  of  the  control  of  public  utilities ; 2  and  likewise  that 
the  power  to  regulate  telephone  rates  could  not  be  sustained  under 
the  general  welfare  clause  of  such  a  charter.3  In  the  case  involv- 
ing this  latter  question,4  decided  in  1888,  it  was  clearly  indicated 
by  implication  that  a  home  rule  city  might  exercise  this  power 
provided  the  grant  of  authority  was  adequately  made  by  its  char- 
ter. "This  power  could  be  delegated  to  municipal  corporations." 
"A  telephone  company,"  being  in  effect  a  monopoly,  "must  sub- 
mit to  such  reasonable  regulations  as  the  municipal  corporation 
has  power  to  prescribe."  "If  the  city  has  such  power,  it  must  be 

1  Supra,  145.  *  Supra,  152,  153.  3  Supra,  181. 

«  The  City  of  St.  Louis  v.  The  Bell  Telephone  Co.,  96  Mo.  623.     1888. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     187 

found  in  a  reasonable  and  fair  construction  of  its  charter"  But 
the  provisions  of  the  St.  Louis  charter  were  not  sufficiently  in  point 
to  warrant  the  deduction  that  the  city  was  endowed  with  power  to 
pass  the  regulatory  ordinance  in  question. 

In  the  light  of  the  implication  of  this  case,  the  ruling  of  the  court 
in  the  case  of  the  State  ex  rel.  Garner  v.  Missouri  &  Kansas  Tele- 
phone Co.1  is  somewhat  disconcerting.  In  the  so-termed  "  enabling 
act"  of  1887  power  had  been  " conferred"  upon  any  city  of  over 
100,000  inhabitants  that  might  frame  its  own  charter  "to  provide 
for  regulating  and  controlling  the  exercise  by  any  person  or  corpora- 
tion of  any  public  franchise  or  privilege  in  any  of  the  streets  or  pub- 
lic places  of  such  city,  whether  such  franchises  or  privileges  have 
been  granted  by  said  city  or  by  or  under  the  state  of  Missouri,  or 
any  other  authority."  In  the  charter  of  Kansas  City,  under  the 
allowance  either  of  the  constitution  itself  or  of  this  provision  of  the 
enabling  act,  express  power  had  been  conferred  upon  the  city  coun- 
cil "to  regulate  the  prices  to  be  charged  by  telephone"  and  other 
public  service  corporations.  Holding  that  the  city  had  no  power 
to  regulate  telephone  rates,  the  views  of  the  court  were  expressed 
as  follows : 

If  the  city  had  power  to  enact  the  ordinance  fixing  the  maximum  rate 
for  telephone  service  in  question  it  is  to  be  found  in  that  clause  of  the  Con- 
stitution, those  sections  of  the  statute  and  those  charter  provisions  above 
quoted.  In  so  far  as  the  ordinance  depends  upon  the  charter  there  is 
no  doubt  of  the  authority;  the  charter  expressly  authorizes  it.  But 
whether  the  provision  of  the  charter  is  backed  by  lawful  authority,  is  the 
serious  question  in  the  case. 

It  is  not  questioned  that  the  State  has  power  to  keep  telephone  corpora- 
tions in  this  State  within  reasonable  bounds  in  respect  of  charges  for  their 
service,  nor  can  it  be  questioned  that  the  State  may  delegate  that  power 
to  be  exercised  by  a  municipal  corporation  within  its  limits,  but  the  ques- 
tion is,  has  the  State  delegated  that  authority  to  this  city  ?  .  .  . 

But  it  is  not  every  power  that  may  be  essayed  to  be  conferred  on  the 
city  by  such  a  charter  that  is  of  the  same  force  and  effect  as  if  it  were 
conferred  by  an  act  of  the  General  Assembly,  because  the  Constitution  does 
not  confer  on  the  city  the  right,  in  framing  its  charter,  to  assume  all  the 
powers  that  the  State  may  exercise  within  the  city  limits,  but  only  powers 

i  189  Mo.  83.     1905. 


188  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

incident  to  its  municipality,  yet  the  Legislature  may,  if  it  should  see  fit, 
confer  on  the  city  powers  not  necessary  or  incident  to  the  city  government. 
There  are  governmental  powers,  the  just  exercise  of  which  is  essential  to 
the  happiness  and  well-being  of  the  people  of  a  particular  city,  yet  which  are 
not  of  a  character  essentially  appertaining  to  the  city  government.  Such 
powers  the  State  may  reserve  to  be  exercised  by  itself,  or  it  may  delegate 
them  to  the  city,  but  until  so  delegated  they  are  reserved.  The  words 
in  the  Constitution,  "may  frame  a  charter  for  its  own  government," 
mean  may  frame  a  charter  for  the  government  of  itself  as  a  city,  including 

iall  that  is  necessary  or  incident  to  the  government  of  the  municipality, 
but  not  all  the  power  that  the  State  has  for  the  protection  of  the  rights  and 
regulation  of  the  duties  of  the  inhabitants  in  the  city,  as  between  them- 
selves. Nor  does  the  Constitution  confer  unlimited  power  on  the  city 
to  regulate  by  its  charter  all  matters  that  are  strictly  local,  for  there  are 
many  matters  local  to  the  city,  requiring  governmental  regulation,  which 
are  foreign  to  the  scope  of  municipal  government.  In  none  of  the  cases 
that  have  been  before  this  court  bringing  into  question  the  charters  of  St. 
Louis  and  Kansas  City  under  the  Constitution  of  1875,  have  we  given  to 
this  constitutional  provision  any  broader  meaning  than  above  indicated. 
(St.  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623 ;  State  ex  reL  v.  Field,  99  Mo.  353 ; 
Kansas  City  ex  rel.  v.  Scarritt,  127  Mo.  646 ;  State  ex  reL  Subway  Co.  v. 
St.  Louis,  145  Mo.  574 ;  Kansas  City  v.  Stegmiller,  151  Mo.  189 ;  Young 
v.  Kansas  City,  152  Mo.  661.) 

The  regulation  of  prices  to  be  charged  by  a  corporation  intrusted  with 
a  franchise  of  a  public  utility  character  is  within  the  sovereign  power  of 
the  State  that  grants  the  franchise  or  that  suffers  it  to  be  exercised  within 
its  borders,  and  that  power  may  be  with  wisdom  and  propriety  conferred 
on  a  municipal  corporation,  but  it  is  not  a  power  appertaining  to  the  gov- 
ernment of  the  city  and  does  not  follow  as  an  incident  to  a  grant  of  power 
to  frame  a  charter  for  a  city  government.  The  authority  of  Kansas  City 
to  insert  in  its  charter  the  power  to  regulate  the  price  to  be  charged  for 
telephone  service  within  the  city  is  not  conferred  by  the  constitutional 
provision  above  quoted. 

Is  it  conferred  by  what  is  called  the  "Enabling  Act"  of  1887?  .  .  . 

In  adopting  these  two  sections  50  and  51,  of  the  so-called  Enabling 
Act,  the  Legislature  had  in  view  the  necessity  of  power  in  the  city  to 
control  its  streets  and  other  public  places,  and  the  power  in  the  State  to 
grant  franchises  to  be  exercised  by  the  grantee  in  the  streets  and  other 
public  places  of  the  city,  and  it  was  not  difficult  to  foresee  that  a  clash 
might  occur  between  the  city  in  its  exclusive  control  of  the  street  and  the 
private  corporation  in  the  exercise  of  the  franchise  granted  to  the  State. 
Therefore,  after  granting  to  the  city,  as  it  did  in  section  50,  control  of  its 
streets,  the  thought  occurred  to  the  lawmakers  that  there  were  private 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     189 

corporations  organized  and  to  be  organized  under  the  laws  of  this  State 
with  express  authority  to  use  the  streets  and  other  public  highways  in  the 
exercise  of  their  franchises,  and  in  order  to  prevent  any  clash  that  might 
occur  between  the  city  in  its  control  of  the  street  and  the  private  corpora- 
tion in  its  use  of  the  same,  section  51  was  added  which  gave  the  city  power 
to  regulate  and  control  the  private  corporation  in  its  use  of  the  street. 
Under  that  power  the  city  may  regulate  the  planting  of  poles,  wires,  etc., 
or  require  the  wires  to  be  put  under  ground,  or  do  any  thing  within  reason 
to  render  the  use  of  the  street  by  the  private  corporation  as  little  of  injury 
to  the  public  as  may  be.  But  the  section  does  not  confer  on  the  city  the 
power  to  regulate  the  prices  to  be  charged  by  the  telephone  company  for 
its  service  to  the  inhabitants  of  the  city. 

Following  upon  the  heels  of  the  earlier  case  upon  this  subject 
this  was  strange  doctrine  indeed.  Moreover,  even  if  it  be  granted 
that  the  city  enjoyed,  under  the  direct  constitutional  grant  of  au- 
thority to  frame  a  charter  for  its  own  government,  no  power  to  regu- 
late public  utility  rates,  it  is  difficult  to  see  how  this  power  could 
have  been  conferred  in  general  terms  more  expressly  than  in  the 
act  of  1887 ;  and  the  court  admitted  that  such  power  could  be  dele- 
gated to  the  city.  Indeed  it  is  impossible  to  escape  the  conclusion 
that  the  court  here  went  far  out  of  its  way  to  impose  an  inhibition 
upon  the  competence  of  the  city  that  was  in  plain  fact  wholly  un- 
warranted by  its  own  course  of  reasoning.  In  final  analysis  the 
opinion  appears  only  to  have  declared  that  a  city  could  not  exer- 
cise this  power  under  the  direct  constitutional  grant  of  authority 
to  frame  a  charter  simply  because  it  could  not  do  so,  and  that  the 
state  law  had  not  conferred  this  power  simply  because  it  had  not 
done  so.  A  more  arbitrary  pronouncement  from  the  bench,  with 
nothing  but  words  gathered  to  its  support,  can  scarcely  be  imagined. 
It  may  be  worth  while  to  remark  that  the  legislature  promptly 
met  this  decision  by  conferring  the  power  here  interdicted  in  terms 
of  such  explicit  meaning  that  it  would  have  required  greater 
heroics  than  even  the  Missouri  court  was  capable  of  to  vitiate 
their  substance.1 

The  above  mentioned  are  the  only  cases  from  the  Missouri 
jurisdiction  that  deal  specifically  with  the  question  of  the  com- 

»  Laws  of  Mo.,  1907,  p.  119. 


190  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

petence  of  a  home  rule  city  to  control  matters  pertaining  to  public 
service  corporations  under  the  general  grant  of  authority  to  frame 
a  charter.1  The  Kansas  City  Telephone  case,  which  expresses  the 
last  word  upon  the  subject,  must  be  taken  to  mean  that  the  home 
rule  city  has  no  power  to  fix  public  utility  rates  in  the  absence  of 
express  statutory  grant,  this  being  a  state  affair.  'And  this  is  but 
a  specific  application  of  the  broad  doctrine,  which  clearly  lay  at  the 
bottom  of  the  opinion  rendered,  that  a  city  in  framing  a  charter  for 
its  own  government  (wholly  aside  from  any  consideration  of  con- 
flicts between  state  laws  and  charter  provisions)  may  not  exercise 
a  function  that  is  of  general  or  state  as  distinguished  from  strictly 
local  or  municipal  concern.  Not  only  would  the  consistent  and 
rigid  application  of  such  a  doctrine  render  the  grant  of  home  rule 
powers  a  ludicrous  farce,  but  it  is  also  to  be  remarked  that  this  is 
a  doctrine  which  the  Missouri  court  itself  has  in  numerous  cases 
expressly  or  impliedly  repudiated. 

To  what  Extent  may  the  City  exercise  Control  over  its  Own  Streets  ? 

No  question  has  ever  arisen  in  Missouri  as  to  the  power  of  a  city, 
in  the  absence  of  a  conflicting  state  law,2  to  provide  in  a  freeholders7 
charter  for  the  control  of  matters  pertaining  to  street  improve- 
ments. But  one  or  two  interesting  cases  have  arisen  involving 
a  consideration  of  the  extent  of  the  city's  power  over  its  streets. 
Thus  in  the  case  of  the  State  ex  rel.  Belt  v.  City  of  St.  Louis 3  it  was 
decided  that  the  city  had  no  authority  to  enact  an  ordinance  direct- 
ing the  board  of  public  improvements  to  enter  into  contract  with  a 
designated  person  for  clearing  the  streets  of  waste  paper  and  litter 
by  providing  at  suitable  places,  without  cost  to  the  city,  boxes  for 
the  collection  of  such  rubbish  and  giving  to  the  contractor,  in  lieu 
of  other  compensation,  the  exclusive  right  to  use  these  boxes  for 
advertising  purposes.  The  theory  of  the  court  in  this  case  seemed 

1  Albright  v.  Fisher,  164  Mo.  56  (1901),  and  State  ex  rel.  Abel  v.  Gates,  190  Mo. 
640  (1905),  which  involved  questions  relating  to  public  utility  control,  were  con- 
cerned almost  wholly  with  the  matter  of  the  competence  of  the  courts  to  control 
the  proposed  action  of  municipal  legislative  bodies  by  the  grant  of  injunctive  relief. 

2  Supra,  153-156.  3  161  Mo.  371.     1900. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     191 

to  be  that  the  city  under  the  charter  grant  of  power  "to  regulate 
the  use  of  the  streets"  could  not  delegate  "its  control  over  the  pub- 
lic streets,  held  by  it  in  trust  for  the  public,  and  create  a  monopoly 
in  favor  of  one  advertiser,"  such  action  being  distinguished  from  the 
grant  of  power  to  public  service  corporations  to  make  peculiar 
uses  of  the  streets  on  the  ground  that  the  use  of  the  streets  in  such 
instances  was  "public"  use  although  "private  gain"  was  the  pri- 
mary object  of  such  corporations,  whereas  in  this  case  the  "  pecu- 
niary profit"  arose  "from  a  source  wholly  distinct  from  any  public 
use."  Of  course  this  argument,  in  view  of  the  fact  that  the  public 
derived  a  definite  benefit  in  the  form  of  clean  streets,  was  open  to 
debate.  But  since  the  decision  of  the  case  did  not  turn  upon  any 
inherent  difference  between  the  competence  of  a  home  rule  city  in 
this  regard  and  that  of  a  city  under  legislative  charter,  it  may  be 
passed  with  this  casual  reference. 

More  directly  in  point  was  the  case  of  Ford  v.  Kansas  City.1 
The  charter  of  the  city  authorized  the  council  to  impose  upon 
property  owners  or  upon  the  occupiers  of  premises  the  duty  of  keep- 
ing sidewalks  in  repair  as  well  as  free  from  snow  and  ice.  Acting 
under  this  authority,  the  council  enacted  an  ordinance  imposing 
these  duties  upon  occupiers  as  well  as  owners.  The  court  declared 
in  part: 

It  may  be  conceded  that  the  municipal  corporation  may  impose  upon 
lot  owners  the  burden  of  the  duty  of  keeping  the  walks  in  front  of  their 
premises  in  reasonably  safe  repair,  and  enforce  the  same  by  special  tax 
bills,  or  penalties  for  failing  to  perform  such  duty ;  but  we  are  unwilling 
to  extend  this  power  to  a  mere  occupant  of  property  to  keep  in  repair  the 
walks  in  front  of  the  property  occupied  by  him.  This  duty  could  only 
be  enforced  against  a  tenant  by  a  judgment  in  the  nature  of  a  fine  for 
failing  to  perform  his  duty ;  no  tax  bill  could  be  issued  against  him,  because 
he  is  not  the  owner  of  the  property.  The  city  has  absolute  control  of  its 
streets  and  sidewalks  and,  under  the  law,  it  must  keep  them  in  a  reason- 
ably safe  condition,  and  this  duty  cannot  be  evaded,  suspended,  or 
shifted  upon  others,  by  any  act  of  its  own.  (Welsh  v.  St.  Louis,  73  Mo. 
71 ;  Russel  v.  Town  of  Columbia,  74  Mo.  480.) 

The  keeping  of  sidewalks  in  safe  repair,  in  a  large  and  populous  city 
means,  in  many  instances,  the  doing  of  a  large  amount  of  substantial 

1  181  Mo.  137.     1903. 


192     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

work,  and  if  cities  can  impose  this  burden  and  duty  upon  mere  renters  of 
property,  we  confess  those  living  in  such  cities,  who  are  so  unfortunate 
as  not  to  be  able  to  own  the  property  occupied  by  them,  are  at  the  mercy 
of  charter  framers. 

It  is  unnecessary  to  express  an  opinion  as  to  that  part  of  the  ordinance 
relating  to  the  removal  of  snow  and  ice  from  the  walks  by  the  occupant, 
for  that  feature  of  the  ordinance  is  not  involved  in  this  cause ;  but  upon 
the  question  of  imposing  the  duty  of  keeping  the  sidewalks  in  safe  repair 
by  the  mere  occupant,  who  is  not  the  owner,  we  unhesitatingly  say  that 
the  charter  provision  and  ordinance  predicated  upon  it,  which  authorizes 
the  exercise  of  such  power,  is  unconstitutional  and  void.  We  have 
searched  in  vain  for  authority  which  sanctions  the  exercise  of  any  such 
power.  We  readily  comprehend  the  reason  for  imposing  the  duty  of 
street  improvements  and  repair  upon  the  property  owners,  for  such  burdens 
of  taxation  are  repaid  in  the  enhancement  of  the  value  of  the  property,  but 
no  such  reason  can  be  assigned  as  to  the  tenants  occupying  the  property. 

Aside  from  the  difficulty  of  enforcing  the  ordinance  in  question, 
in  view  of  the  fact  that  the  expense  incurred  by  the  city  in  repairing 
a  sidewalk  not  kept  in  repair  by  the  occupier  could  not  be  made  a 
lien  upon  the  property,  and  aside  from  the  wisdom  of  the  policy 
involved  —  with  both  of  which  facts  the  court  should  have  ob- 
viously had  no  concern  —  it  is  somewhat  difficult  to  follow  the  line 
of  reasoning  here  employed.  If  the  court  had  no  hesitation  in  say- 
ing that  the  charter  provision  and  the  ordinance  predicated  upon  it 
were  "unconstitutional  and  void,"  this  lack  of  hesitancy  certainly 
could  not  be  ascribed  to  the  clearness  with  which  their  unconstitu- 
tionally was  elucidated.  No  constitutional  provision  in  point 
was  named.  The  requirement  might  indeed  have  been  regarded  as 
a  special  assessment  tax,  the  theory  of  which  has  been  that  it  is 
paid  for  in  accordance  with  the  direct  value  of  the  special 
improvement  to  the  property  —  improvement  which  redounds  to 
the  benefit  of  the  owner  rather  than  the  occupier  of  premises. 
But  everybody  knows  that  the  incidence  of  such  assessments  is 
largely  borne  by  occupiers ;  and  there  is  certainly  no  well-estab- 
lished rule  of  law  in  this  country  (doubtless  because  the  policy  has 
not  frequently  been  adopted)  to  the  effect  that  a  special  assess- 
ment may  not  be  levied  directly  upon  occupiers  on  the  theory  that 
it  is  they  and  not  the  owners  who  enjoy  the  measurable  special 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     193 

benefit  accruing.  It  may  be  also  that,  owing  to  frequent  changes 
in  occupancy  and  the  consequent  failure  of  a  tenant  to  "live  out" 
the  benefit  of  such  a  special  assessment,  the  wisdom  of  the  policy 
would  be  open  to  serious  question.  But  this  is  beside  the  mark. 
The  conclusion  seems  unescapable  that  the  judgment  of  invalidity 
was  reached  not  even  by  careful  analysis  of  the  economic  prin- 
ciples of  taxation  involved  but  because  the  court  disapproved  of  a 
policy  which  would  place  those  "who  are  so  unfortunate  as  not  to 
be  able  to  own  the  property  occupied  by  them  at  the  mercy  of  char- 
ter framers." 

This  case  is  chiefly  of  interest  because  it  illustrates  the  vagaries 
of  policy  into  which  home  rule  cities  may  occasionally  stray  and 
the  difficulty  presented  to  the  courts  of  determining  whether  the 
authority  to  inaugurate  experimental  policies  is  embraced  within 
the  power  to  frame  a  charter.  After  all  it  is  worth  remembering 
that  even  in  a  government  as  stable  as  ours  the  political  heresies 
of  to-day  may  be  the  accepted  principles  of  to-morrow. 

Has  the  City  the  Power  to  confer  Jurisdiction  upon  a  Court  form- 
ing a  Part  of  the  State  Judicial  Organization? 

It  will  be  recalled  that  in  a  case  involving  the  power  of  St.  Louis 
to  regulate,  in  a  manner  contrary  to  state  law,  certain  matters 
pertaining  to  the  rights  of  persons  who  might  bring  action  for  dam- 
ages against  the  city,  it  was  held  that  the  regulation  of  "practice  in 
the  courts  of  the  state  in  cases  where  said  city  is  an  ordinary  litigant " 
does  not  "fall  within  the  domain  of  municipal  government."  * 
This  decision  did  not,  however,  clearly  assert  that  the  city  was  in- 
competent to  control  such  a  matter  to  the  extent  that  it  was  not 
made  subject  to  statutory  control.  Nor  did  it  determine  whether 
a  city  could  or  could  not  confer  jurisdiction  upon  a  state  court  in 
addition  to  the  jurisdiction  fixed  by  state  law.  The  former  point 
has  never  been  raised  in  Missouri.  But  in  the  case  of  The  Union 
Depot  Railroad  Co.  v.  The  Southern  Railway  Co.2  this  latter  ques- 

1  Badgley  v.  St.  Louis,  149  Mo.  122  (1898)  ;  supra,  165. 
*  105  Mo.  562.     1891. 


194     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tion  was  squarely  presented.  It  was  held  that  the  charter  of  St. 
Louis  conferred  power  upon  the  municipal  assembly  to  regulate  by 
ordinance  the  manner  of  adjusting  the  compensation  of  one  rail- 
way to  another  when  one  should  be  authorized  by  ordinance  to  use 
the  other's  tracks.  The  assembly  passed  an  ordinance  conferring 
power  upon  the  circuit  court  to  review  the  findings  of  commission- 
ers who  should  be  appointed  to  make  such  an  adjustment  as  this. 
The  question  was  whether  the  city  had  the  power  to  confer  such 
jurisdiction.  This  answer  was  given : 

That  objection  is  this,  that  the  city  had  no  power  to  confer  appellate 
jurisdiction  over  the  award  of  the  commissioners  upon  the  circuit  court. 
Section  22,  of  article  6,  of  the  constitution,  cited  in  support  of  the  propo- 
sition, provides  that  the  circuit  court  shall  have  "  such  concurrent  juris- 
diction with,  and  appellate  jurisdiction  from,  inferior  tribunals  and  justices 
of  the  peace  as  is  or  may  be  provided  by  law."  This  section  is  not  in  the 
way  of  any  law  giving  the  circuit  court  jurisdiction  over  the  award. 

The  legislature  may  authorize  a  city  to  institute  and  prosecute  suits  in 
the  circuit  and  other  courts.  It  may  even  delegate  to  a  city  the  power  to 
establish  municipal  corporation  courts.  State  v.  Johnson,  17  Ark.  407. 
Indeed  the  charter  of  the  city  of  St.  Louis  not  only  provides  for  two  police 
justices,  but  the  assembly  is  authorized  to  increase  the  number.  The 
mere  fact  that  the  ordinance  gives  the  circuit  court  power  to  review  the 
award  is  no  objection  to  it.  Authorized  ordinances,  duly  enacted,  have 
the  force  and  effect  of  laws. 

Here  certainly  was  no  uncatholic  view  of  the  scope  of  powers  em- 
braced within  the  grant  of  authority  to  frame  a  charter.  Although 
the  constitution  expressly  declared  that  the  circuit  court  should 
have  such  jursidiction  "as  is  or  may  be  provided  by  law,"  the  char- 
ter and  ordinance  were  in  effect  declared  to  be  laws  within  the 
meaning  of  this  constitutional  provision.1  This  doctrine  as  ap- 
plied to  sustain  precisely  this  same  provision  of  the  charter  was  re- 
affirmed in  Grand  Ave.  Railway  Co.  v.  Citizens'  Railway  Co.2  and 
in  Grand  Ave.  Railway  Co.  v.  Lindell  Railway  Co.,3  where  it  was 
expressly  declared  that  "the  ordinance  in  question  is  a  provision 
'by  law'  in  the  meaning  of  the  constitution." 

1  For  views  in  other  states  on  this  point,  see  infra,  426,  473. 
*  148  Mo.  665.     1898.  «  148  Mo.  637.     1898. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     195 

It  is  easy  to  see  that  the  broad  doctrine  here  involved  is  one 
which  might  give  rise  to  some  difficulty.  Suppose,  for  example, 
that  a  home  rule  city  should  confer  general  jurisdiction  for  the  en- 
forcement of  its  police  ordinances  upon  a  court  forming  a  part  of 
the  judicial  organization  of  the  state.  It  might  well  be  that  the 
court  in  question,  organized  under  state  law,  would  be  utterly 
swamped  with  cases  arising  out  of  the  jurisdiction  so  conferred, 
as  well  as  wholly  unfitted  as  to  its  organization  for  their  proper 
disposition.  However,  the  danger  of  such  a  situation  is  doubtless 
largely  imaginary. 


Has  the  City  the  Power  to  create  Police  Courts  f 

The  constitution  of  Missouri  declares  that  "the  judicial  power 
of  the  state  .  .  .  shall  be  vested  in"  a  series  of  enumerated  courts, 
among  them  being  "municipal  or  corporation  courts."  l  In  the 
elaborate  article  dealing  with  the  "judicial  department"  all  of  the 
several  courts  named  are  directly  established  with  the  sole  excep- 
tion of  these  "municipal  or  corporation"  courts,  and  there  is  no 
express  declaration  as  to  what  authority  is  empowered  to  establish 
the  latter.  In  practice  the  legislature  has  created  police  courts 
for  cities  under  legislative  charters.  In  practice  also  St.  Louis 
and  Kansas  City  have  provided  for  police  courts  by  the  terms  of 
their  freeholders'  charters.2  These  courts  are  given  jurisdiction 
over  cases  arising  under  the  charter  and  ordinances  of  the  city, 
and  their  relation  with  certain  courts  of  the  state  judicial  organiza- 
tion is  determined  to  an  extent  at  least.3 

In  the  above-mentioned  Union  Depot  Railway  case4  it  was 
clearly  intimated  that  the  power  to  establish  a  police  court  was 

1  Art.  VI,  sec.  1. 

2  St.  Louis  charter  of  1876,  Art.  IV,  sec.  25-27 ;    of  1914,  Art.  XII.     Kansas 
City  charter  of  1889,  Art.  IV,  sees.  15  ff. ;  of  1908,  Art.  IV,  sees.  9,  10. 

3  The  St.  Louis  charter  of  1914,  for  example,  creates  appeal  from  the  "City 
Courts"  established  to  the  St.  Louis  Court  of  Criminal  Correction ;  and  the  Kansas 
City  charter  of  1908  confers  concurrent  jurisdiction  in  certain  classes  of  cases  upon 
the  "Municipal  Court"  established  and  the  Circuit  Court  of  Jackson  County. 

4  Supra,  193. 


196  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

quite  within  the  scope  of  the  power  of  St.  Louis.  In  the  case  of 
Ex  parte  Kiburg,1  decided  in  the  St.  Louis  court  of  appeals  in  1881, 
this  point  was  definitely  before  the  court  and  it  was  there  held 
that  the  " charter  authority"  in  this  regard  " derives  sanction" 
from  the  provision  of  the  constitution  vesting  the  judicial  power 
of  the  state  in  " municipal  or  corporation  courts"  among  other 
enumerated  courts.  Since  cities  were  empowered  to  frame  char- 
ters and  since  a  part  of  the  judicial  power  of  the  state  was  vested 
in  municipal  courts,  which  were  not  created  by  the  constitution  and 
were  not  specifically  required  to  be  created  by  the  legislature,  it  was 
evidently  the  view  of  the  court,  although  this  was  not  declared 
in  so  many  words,  that  such  courts  might  with  constitutional  pro- 
priety be  established  through  the  medium  of  freeholders'  charters. 
In  spite  of  the  fact  that  both  of  the  home  rule  cities  of  Missouri 
set  up  police  courts  under  their  charters,  the  state  legislature  enacted 
in  1903  a  law  creating  juvenile  courts  in  these  cities.2  Several 
constitutional  objections  were  raised  to  this  act  in  the  case  of 
Ex  parte  Loving,3  but  the  contention  seems  not  to  have  been  point- 
edly made  that  under  the  judiciary  article  of  the  constitution,  when 
considered  in  conjunction  with  the  provisions  conferring  home  rule 
powers,  the  legislature  was  powerless  to  create  in  St.  Louis  and 
Kansas  City  "municipal  or  corporation  courts."  It  was  urged, 
however,  that  the  law  was  void  as  being  in  conflict  with  a  control- 
ling provision  of  the  charter.  On  this  point  the  court  said  briefly : 

It  is  also  insisted  that  the  provisions  of  this  act  are  in  conflict  with 
certain  provisions  of  the  charter  of  Kansas  City,  in  respect  to  the  exercise 
of  jurisdiction  by  the  police  judge,  in  pursuance  of  certain  ordinances 
covering  some  of  the  matters  that  are  included  in  this  act.  We  will  say, 
upon  that  proposition,  that  this  being  a  general  law,  as  applicable  to  the* 
class  of  subjects  treated  of,  the  charter  provisions  would  be  inoperative. 
The  provisions  of  the  charter  must  be  in  harmony  not  only  with  the  Con- 
stitution of  the  State,  but  as  well,  its  general  laws.  This  is  clearly  settled 
in  the  discussion  of  the  cases  of  Kansas  City  v.  Oil  Co.,  140  Mo.  1.  c.  469, 
and  Kansas  City  v.  Bacon,  147  Mo.  259. 

1  10  Mo.  App.  442  (1881).     See  also  Kansas  City  v.  Neal,  49  Mo.  App.  72  (1892). 

1  Laws  of  Mo.,  1903,  p.  213.     Amended  so  as  to  give  Kansas  City  a  somewhat 

differently  constituted  court,  Laws  of  Mo.,  1905,  p.  56.          3  178  Mo.  194.     1903. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI     197 

The  conclusion  must  be  reached  from  these  few  adjudicated 
cases  that  while  the  charter  control  over  police  courts  has  not  given 
rise  to  much  difficulty  or  controversy  in  Missouri,  and  while  such 
control  is,  in  the  absence  of  state  law,  entirely  within  the  compe- 
tence of  a  home  rule  city,  yet  this  is  a  subject  upon  which  a  state 
law  will  supersede  a  contrary  charter  provision. 


7s  the  Power  to  frame  a  Charter  a  Continuing  Right  ? 

After  the  amendment  of  1902  of  the  home  rule  provisions  of  the 
Missouri  constitution  applicable  specifically  to  St.  Louis,  there 
could  be  no  question  as  to  the  power  of  this  city  to  frame  and  adopt 
a  new  charter  at  any  time  that  it  might  elect  to  do  so.1  Upon  this 
point,  however,  the  provisions  applicable  to  cities  of  more  than 
100,000  inhabitants  were  by  no  means  convincing,2  and  in  the  case 
of  Morrow  v.  Kansas  City 3  the  court  was  called  upon  to  say  whether 
Kansas  City  had  exhausted  its  charter-making  power  by  the 
adoption  of  a  charter  in  1889,  or  whether  another  board  of  free- 
holders might  be  elected,  as  was  proposed  in  1904,  to  draft  a  new 
charter.  The  opinion  recited  in  part : 

Keeping  in  view  then  that  the  power  to  create  a  municipal  corporation 
and  to  define  its  powers  is  a  legislative  function,  and  that  prior  to  the 
Constitution  of  1875  it  was  vested  exclusively  in  the  legislative  branch  of 
our  State  government  by  the  general  grant  of  legislative  power,  we  can 
the  more  readily  grasp  the  full  meaning  and  scope  of  section  16  of  article 
9  of  the  Constitution  of  Missouri  of  1875,  which  provides :  "Any  city  hav- 
ing a  population  of  more  than  one  hundred  thousand  inhabitants  may 
frame  a  charter  for  its  own  government,  consistent  with  and  subject  to  the 
Constitution  and  laws  of  this  State,  by  causing  a  board  of  thirteen  free- 
holders, who  shall  have  been  for  at  least  five  years  qualified  voters  of  such 
city  at  any  general  or  special  election,"  etc.  It  is  obvious  that  the  power 
vested  in  the  legislature  to  grant  the  charters  of  all  cities  was  by  this 
section  of  the  Constitution  modified,  so  that  when  any  city  of  more  than 
one  hundred  thousand  inhabitants  elected  to  avail  itself  of  this  grant  and 
framed  and  adopted  its  own  freeholders'  charter,  then  the  power  of  the 
legislature  to  govern  the  purely  municipal  affairs  of  such  a  city  ceased, 
and  by  the  grant  the  people  of  the  State  transferred  this  legislative  power, 

1  Supra,  119.  2  Supra,  121.  « 186  Mo.  675.     1904. 


198  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

because  the  framing  of  a  charter  and  adopting  it  is  the  exercise  of  legisla- 
tive power,  to  the  people  of  such  city,  but  in  so  doing  did  not  change  the 
nature  or  extent  of  the  power  further  than  it  was  made  a  condition  that 
the  charter  which  it  should  frame  and  adopt  should  be  consistent  with  and 
subject  to  the  Constitution  and  laws  of  this  State.  In  a  word,  the  people 
of  the  State  in  their  sovereign  capacity  delegated  a  legislative  power, 
which  theretofore  had  been  vested  in  the  legislature,  to  the  city  itself, 
and  when  the  city  availed  itself  of  this  privilege  then  it  ceased  to  be  in  the 
power  of  the  General  Assembly  to  curtail  the  power  thus  vested  in  the  city. 
(State  ex  rel.  Kansas  City  v.  Field,  99  Mo.  352 ;  Kansas  City  v.  Oil  Com- 
pany, 140  Mo.  466-7-471.) 

At  considerable  length  of  discussion  the  court  endeavored  to 
distinguish  the  home  rule  provisions  of  the  Missouri  constitution 
from  those  of  California,  where  the  supreme  court  had  reached  an 
opposite  conclusion  upon  this  point.1  In  fact,  however,  the  differ- 
ences pointed  to  were  of  minor  significance.  It  was  simply  that 
the  California  court  applied  to  the  constitution  a  rule  of  literal  con- 
struction while  the  Missouri  court  considered  the  substance  and 
purpose  rather  than  the  letter  of  the  grant.  The  case  is  of  no 
especial  importance  anyway  except  as  it  indicates  the  necessity  of 
'  devoting  great  care  to  the  phrasing  of  a  constitutional  provision 
conferring  the  charter-making  power  upon  cities. 

i.  On  the  whole  it  may  perhaps  be  said  that  in  cases  involving 
merely  the  question  of  whether  this  or  that  power  is  embraced 
within  the  scope  yf  authority  to  frame  and  adopt  a  charter,  the 
Missouri  court  has  been  more  liberal  than~otherwise,  although  one 
or  two  cases  furnish  conspicuous  exceptions.  FWholly  in  the  ab- 
sence of  any  alleged  conflict  with  state  laws,  the  powers  of  taxation 
and  of  eminent  domain  and  the  competence  to  regulate  municipal 
elections,  to  confer  jurisdiction  upon  a  state  court,  to  create  a  police 
court,  and  to  exercise  the  charter-making  power  continuously  have 
been  sustained.  So  far  as  the  police  power  is  concerned  the  home 
rule  charter  was  viewed  precisely  as  if  it  had  been  a  charter  of  leg- 
islative origin.  On  somewhat  unaccountable  grounds  the  power 
to  regulate  public  utility  rates  was  denied.  But  it  is  especially 

1  Blanchard  v.  Hartwell,  131  Cal.  263  (1900) ;  infra,  221.     See  also  infra,  418. 


THE  SCOPE  OF  THE  CITY'S  POWERS  IN  MISSOURI      199 

noteworthy  that  the  restricting  hand  of  the  court  was  laid  upon 
every  municipal  action  that  was  in  any  sense  experimental  in  policy 
or  outside  of  the  usual  and  commonplace  in  the  field  of  municipal 
activities.  Thus  was  compulsory  voting  interdicted ;  as  was  also 
a  scheme  to  secure  street  trash  boxes  in  return  for  advertising  privi- 
leges. So  likewise  was  the  city  prohibited  from  requiring  occu- 
piers of  premises  to  be  responsible  for  repairs  to  sidewalks^  In 
spite  of  the  fact  that  in  one  or  two  cases  the  test  applied  to  deter- 
mine the  competence  of  the  city  was  whether  the  legislature  could 
have  conferred  the  disputed  power  in  a  legislative  charter,  this 
test  was  by  no  means  consistently  applied,  as  is  evidenced  by  the 
ruling  of  the  court  in  respect  to  the  power  of  the  city  to  regulate 
utility  rates. 


CHAPTER  VII 

HOME  RULE  IN  CALIFORNIA  —  THE  LEGAL  NATURE 
OF  A  FREEHOLDERS'   CHARTER 

FOLLOWING  the  lead  of  Missouri  the  constitutional  convention 
which  met  in  California  in  the  year  1879  likewise  determined  to 
liberate  at  least  the  metropolitan  city  of  the  State  —  San  Fran- 
cisco —  from  the  thraldom  of  legislative  "  interference  "  in  its  affairs 
by  conferring  upon  it  the  power  to  frame  its  own  charter.  The 
provisions  of  the  Missouri  constitution  were  before  the  members 
of  the  convention,  and  St.  Louis  had  been  operating  under  a  free- 
holders' charter  for  more  than  two  years.  Sufficient  time  had  not 
elapsed,  however,  for  the  California  convention  to  have  the  benefit 
of  much  judicial  determination  of  the  complicated  legal  problems 
involved  in  the  St.  Louis  experiment.  Missouri  could  offer  to 
California  nothing  except  the  uninterpreted  phrases  of  her  consti- 
tution. As  might  be  expected  under  these  circumstances  the 
debates  upon  the  floor  of  the  California  convention  showed  no  great 
insight  into  the  heart  of  the  problem  under  consideration.  Said 
Delegate  Reynolds,  speaking  in  support  of  the  proposal : 1 

Now,  to  illustrate  the  difficulties  under  which  the  city  labors,  I  wish 
to  call  attention  to  the  volume  I  hold  in  my  hand.  Here  is  a  volume  of 
fine  print,  three  hundred  and  nineteen  pages,  that  comprises  the  charter 
of  the  city  of  San  Francisco,  to-day.  No  man  on  earth  knows  what  is 
in  it,  and  they  do  not  pay  any  attention  to  it  either.  They  ride  rough 
shod  over  it.  Dozens  of  these  acts  have  been  passed  in  the  interest  of  a 
single  individual.  Some  contractor  or  some  officer  would  want  to  get  a 
supplementary  act  passed,  and  he  would  slide  up  to  the  legislature  and  get 
it  through.  Under  this  section  a  body  of  citizens  selected  for  that  purpose, 

1  Debates  and  Proceedings  of  the  California  Constitutional  Convention  of  1879, 
II,  p.  1060. 

200 


HOME  RULE  PROCEDURE  IN  CALIFORNIA          201 

will  go  to  work  decently,  frame  a  charter,  and  submit  it  to  the  people.  If 
they  fail,  try  it  again,  and  the  amendments  [will]  be  made  in  the  same  and 
no  other  way.  The  argument  seems  to  be  overwhelming  in  favor  of 
adopting  a  regular  systematic  course,  the  same  as  in  forming  a  consti- 
tution for  the  state.  The  argument  that  it  is  creating  an  imperium  in 
imperio,  that  it  is  creating  a  free  city,  that  it  is  running  away  from  the 
state,  has  no  force  whatever.  Of  course,  this  charter  must  be  subservient 
to  the  constitution  and  laws  of  the  state ;  hence  there  can  be  no  objection 
whatever  to  giving  the  city  of  San  Francisco  the  authority  to  procure  a 
charter  for  her  own  government. 

In  reply  to  this  somewhat  unilluminating  explanation  of  the 
purport  of  the  proposition  Delegate  Hale  declared : 1 

This  ninth  section  is  very  strong,  and  makes  it  easy  for  the  city  of  San 
Francisco  to  set  up  an  independent  government;  entirely  independent 
of  the  authority  of  this  state.  .  .  .  What  is  it  we  authorize  ?  Why  that 
the  city  of  San  Francisco  may  hold  a  constitutional  convention  —  call 
it  in  her  own  way,  hold  it  when  she  pleases,  enact  such  a  constitution  as 
she  pleases.  How  is  it  to  become  the  organic  law  ?  Why,  sir,  by  submit- 
ting it  to  the  electors  of  the  city  of  San  Francisco.  Is  there  any  power 
in  the  state  government,  supposing  that  they  should  set  up  a  government 
thus  inconsistent  with  the  state  government,  and  which  contravenes  the 
policy  of  our  laws,  by  which  the  state  could  prevent  it  ?  No,  sir,  there  is 
no  authority  provided.  It  is  to  be  submitted  to  the  electors  alone,  and 
if  by  them  satisfied,  it  becomes  the  organic  law  of  the  city  of  San  Francisco. 
There  is  no  power  in  the  legislature ;  there  is  no  power  in  the  judiciary, 
nor  in  any  of  the  departments  of  the  state  to  interfere  if  we  establish  that 
system ;  and  if  they  themselves  become  dissatisfied  and  wish  to  amend 
it,  they  have  only  to  repeat  the  process,  and  call,  independently  of  the 
authority  of  the  state,  another  convention,  and  adopt  these  amendments 
and  put  them  in  force.  They  are  required  to  keep  one  of  these  new  con- 
stitutions on  file  in  the  office  of  the  Secretary  of  State,  and  then  all  the 
courts,  and  all  the  departments  of  government  are  required  to  take  notice 
and  govern  themselves  accordingly. 

This  is  the  boldest  kind  of  an  attempt  at  ^secession.  If  this  had  been 
attempted  down  at  the  lower  end  of  the  state,  it  would  not  have  looked  so 
bad.  But  here  in  San  Francisco  .  .  .  [it]  seems  to  me  to  savor  so  strongly 
of  imperialism  that  I  cannot  see  how  any  gentleman  on  this  floor  can  recon- 
cile himself  to  advocate  it.  Why,  how,  for  what  reason,  can  it  be  argued 
that  the  [people  of  the]  city  of  San  Francisco  shall  not  submit  themselves 

1  Debates  and  Proceedings  of  the  California  Constitutional  Convention  of  1879, 
II,  p.  1061. 


202  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

to  the  laws  of  which  they  are  a  part,  and  whose  government  and  duties 
they  should  share?  ... 

In  spite  of  the  opposition  thus  eloquently  voiced,  the  following 
provisions  were  incorporated  into  article  XI  of  the  constitution 
as  it  came  from  the  hands  of  the  convention : 

Sec.  6.  Corporations  for  municipal  purposes  shall  not  be  created  by 
special  laws ;  but  the  Legislature,  by  general  laws,  shall  provide  for  the 
incorporation,  organization,  and  classification,  in  proportion  to  population, 
of  cities  and  towns,  which  laws  may  be  altered,  amended,  or  repealed. 
Cities  and  towns  heretofore  organized  or  incorporated  may  become  organ- 
ized under  such  general  laws  whenever  a  majority  of  the  electors  voting 
at  a  general  election  shall  so  determine,  and  shall  organize  in  conformity 
therewith ;  and  cities  or  towns  heretofore  or  hereafter  organized,  and  all 
charters  thereof  framed  or  adopted  by  authority  of  this  Constitution,  shall 
be  subject  to  and  controlled  by  general  laws. 

Sec.  7.  City  and  county  governments  may  be  merged  and  consolidated 
into  one  municipal  government,  with  one  set  of  officers,  and  may  be  incor- 
porated under  general  laws  providing  for  the  incorporation  and  organiza- 
tion of  corporations  for  municipal  purposes.  The  provisions  of  this  Con- 
stitution applicable  to  cities,  and  also  those  appli cable  to  Bounties,  so  far 
as  not  inconsistent  or  prohibited  to  cities,  shall  be  applicable  to  such 
consolidated  government.1 

Sec.  8.  Any  city  containing  a  population  of  more  than  one  hundred 
thousand  inhabitants  may  frame  a  charter  for  its  own  government,  con- 
sistent with  and  subject  to  the  Constitution  and  laws  of  this  State,  by 
causing  a  board  of  fifteen  freeholders,  who  shall  have  been  for  at  least  five 
years  qualified  electors  thereof,  to  be  elected  by  the  qualified  voters  of  such 

1  [This  section  originally  declared  also  that  "In  consolidated  city  and  county 
governments  of  more  than  one  hundred  thousand  population,  there  shall  be  two 
Boards  of  Supervisors  or  houses  of  legislation  —  one  of  which,  to  consist  of  twelve 
persons,  shall  be  elected  by  general  ticket  from  the  city  and  county  at  large,  and  shall 
hold  office  for  a  term  of  four  years,  but  shall  be  so  classified  that  after  the  first 
election  only  six  shall  be  elected  every  two  years ;  the  other,  to  consist  of  twelve 
persons,  shall  be  elected  every  two  years  and  shall  hold  office  for  the  term  of  two 
years.  Any  vacancy  occurring  in  the  office  of  Supervisor,  in  either  Board,  shall  be 
filled  by  the  Mayor  or  other  chief  executive  officer."  This  provision  merely  incor- 
porated into  the  constitution  certain  features  of  the  then  existing  government 
of  the  city  and  county  of  San  Francisco  —  a  consolidated  government  which  had 
been  established  by  law  in  1856.  San  Francisco  —  the  only  consolidated  city  and 
county  that  there  has  ever  been  in  California  —  did  not  have  a  freeholders'  charter 
until  January  1,  19QO.  This  provision  was  repealed  by  an  amendment  adopted  in 
November,  1894.  It  therefore  never  applied  to  any  freeholders'  charter  in  Cali- 
fornia, and  it  may  in  consequence  be  omitted  from  consideration.] 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         203 

ty,  at  any  general  or  special  election,  whose  duty  it  shall  be,  within 
inety  days  after  such  election,  to  prepare  and  propose  a  charter  for  such 
city,  which  shall  be  signed  in  duplicate  by  the  members  of  such  board,  or 
a  majority  of  them,  and  returned  one  copy  thereof  to  the  Mayor,  or  other 
chief  executive  officer  of  such  city,  and  the  other  to  the  recorder  of  deeds 
of  the  county.  Such  proposed  charter  shall  then  be  published  in  two  daily 
papers  of  general  circulation  in  such  city  for  at  least  twenty  days,  and 
within  not  less  than  thirty  days  after  such  publication  it  shall  be  submitted 
to  the  qualified  electors  of  such  city  at  a  general  or  special  election,  and  if  a 
majority  of  such  qualified  electors  voting  thereat  shall  ratify  the  same,  it 
shall  thereafter  be  submitted  to  the  Legislature  for  its  approval  or  rejection 
as  a  whole,  without  power  of  alteration  or  amendment,  and  if  approved  by 
a  majority  vote  of  the  members  elected  to  each  house,  it  shall  become  the 
charter  of  such  city,  or  if  such  city  be  consolidated  with  a  county,  then  of 
such  city  and  county,  and  shall  become  the  organic  law  thereof,  and  super- 
sede any  existing  charter  and  all  amendments  tEereoT  and  all  special  laws 
inconsistent  with  such  charter.  A  copy  of  such  charter,  certified  by  the 
Mayor,  or  chief  executive  officer,  and  authenticated  by  the  seal  of  such 
city,  setting  forth  the  submission  of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall  be  made  in  duplicate,  and  deposited,  one  in  the 
office  of  the  Secretary  of  State,  the  other,  after  being  recorded  in  the  office 
of  recorder  of  deeds  of  the  county,  or  city  and  county,  among  the  archives 
of  the  city;  all  courts  shall  take  judicial  notice  thereof.  The  charter 
so  ratified  may  be  amendedat  intervals  of  not  less  than  two  years,  by 
proposals  therefor  submitfecPby  legislative  authority  of  the  city,  to  the 
qualified  voters  thereof  at  a  general  or  special  election  held  at  least  sixty  days 
after  the  publication  of  such  proposals,  and  ratified  by  at  least  three-fifths 
of  the  qualified  electors  voting  thereat,  and  approved  by  the  Legislature 
as  herein  provided  for  the  approval  of  the  charter.  In  submitting  any  such 
charter,  or  amendment  thereto,  any  alternative  article  or  proposition  may 
be  presented  for  the  choice  of  the  voters,  and  may  be  voted  on  separately 
without  prejudice  to  others. 


Sec.  11.  Any  county,  city,  town,  or  township  may  make  and  enforce 
within  its  limits  all  such  local,  police,  sanitary,  and  other  regulations  as  are 
not  in  conflict  with  general  laws. 

Certain  other  sections  of  the  same  article  limited  the  power  of 
the  legislature  in  regard  to  specific  matters  relating  to  the  affairs 
of  municipal  corporations ;  but  they  are  not  material  to  the  con- 
sideration of  the  powers  of  home  rule  as  granted  by  the  provisions 
above  set  forth. 


204     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  is  to  be  noted  that,  while  section  six  imposed  important 
limitations  upon  the  legislature  with  respect  to  all  the  cities  of  the 
state,  and  while  section  eleven  conferred  a  general  police  power 
upon  all  cities,  the  power  to  frame  a  charter  was  granted  origi- 
nally only  to  cities  of  more  than  one  hundred  thousand  popula- 
tion. The  provision  was,  therefore,  applicable  only  to  San  Fran- 
cisco. This  city,  like  St.  Louis,  made  haste  to  avail  itself  of  the 
privilege  thus  conferred.  But  its  first  attempt,  in  1880,  and  its 
second  attempt,  in  1883,  as  likewise  two  attempts  thereafter,1 
were  without  success,  each  proposed  charter  being  rejected  by  the 
municipal  electorate.  In  spite  of  this  unfortunate  experience  of 
the  metropolis  of  the  state,  agitation  was  begun  soon  after  the 
adoption  of  the  constitution  for  an  extension  of  like  authority  to 
other  cities ;  and  as  a  result  of  this  agitation  section  eight  was  in 
1887  amended  so  as  to  confer  the  power  to  frame  a  charter  upon 
any  city  containing  a  population  of  more  than  ten  thousand 
inhabitants.  At  this  time  no  very  material  changes  were  made 
in  the  phraseology  of  the  original  grant. 

Immediate  activity  on  the  part  of  certain  middle-sized  cities  of 
the  state  followed  the  adoption  of  this  amendment.  Los  Angeles, 
like  San  Francisco,  had  her  first  attempt  at  charter-making  de- 
feated by  her  own  electors;  but  early  thereafter  a  second  board 
of  freeholders  was  elected,  and  the  charter  which  they  sub- 
mitted was  ratified  by  the  people  in  October,  1888  and  by  the 
legislature  in  January,  1889.2  In  November,  1888  freeholders' 
charters  were  approved  by  the  voters  in  Oakland  and  Stockton 
and  were  subsequently  ratified  by  the  legislature.3  In  March, 
1889  San  Diego  adopted  a  charter  which  likewise  received  the 
stamp  of  legislative  approval.4  Here  then  were  four  cities,  vary- 
ing in  population  from  fourteen  to  fifty  thousand,  which  had  within 
two  years  after  the  privilege  had  been  extended  to  them  availed 
themselves  of  the  opportunity  to  frame  a  government  according 
to  their  own  ideas.  It  was  inevitable  that  these  charters  should 
be  attacked  in  the  courts. 

i  Infra,  229.  J  Stats,  of  Cal.,  1889,  p.  455. 

*  Stats,  of  Cal.,  1889,  pp.  513,  577.  «  Stats,  of  Cal.,  1889,  p.  643. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         205 

The  Form  of  Legislative  Ratification  of  Charters  and  Amendments 

It  is  to  be  noted  that  the  provisions  of  the  constitution  regulat- 
ing the  procedure  to  be  followed  in  the  adoption  of  a  freeholders' 
charter  were  fairly  elaborate  and  complete  in  character.1  The 
attack  that  was  immediately  made  upon  the  first  freeholders' 
charter  of  Los  Angeles  struck  at  what  was  doubtless  the  weakest 
point  in  the  requirements  of  procedure  that  were  laid  down  in  the 
constitution.  It  was  there  provided  that  the  charter  should  be- 
come the  charter  of  the  city  "if  approved  by  a  majority  vote  of 
the  members  elected  to  each  house"  of  the  legislature.  The  char- 
ter of  Los  Angeles,  the  first  charter  presented  to  the  legislature, 
was  ratified  by  a  joint  resolution  of  the  two  houses  without  being 
submitted,  as  in  the  case  of  other  legislation,  to  the  governor. 
This  raised  the  question  whether  the  term  "legislature"  as  used 
in  this  section  included  the  governor.  In  the  case  of  Brooks  v. 
Fischer  2  the  court  declared  upon  this  point : 

It  does  not  follow  that  because  in  other  parts  of  the  constitution,  as 
contended  by  counsel  for  the  petitioner,  the  term  "legislature,"  so  far  as 
it  applies  to  the  enactment  of  laws,  includes  the  governor  as  a  part  of  the 
law-making  power,  that  is  the  effect  of  the  language  above  quoted 
with  reference  to  the  adoption  of  city  charters.  The  language  itself 
clearly  shows  a  different  intention.  It  provides  for  the  submission  to  the 
legislature  which  does  not  necessarily  include  the  governor,  and  provides 
in  express  terms  that  the  proposed  charter  shall  become  effective  upon  its 
being  approved  by  the  members  of  that  body.  It  seems  to  us  that  the 
language  is  so  plain  and  unequivocal  that  it  cannot  call  for  a  construction 
by  this  court.  It  is  enough  that  the  constitution  has  so  provided.  This 
being  the  effect  of  the  constitution  it  seems  to  us  to  be  wholly  immaterial 
whether  the  charter  was  approved  by  the  legislature  by  a  bill  in  the  regular 
form  or  by  way  of  a  joint  resolution. 

This  decision  definitely  settled  the  validity  of  legislative  ratifi- 
cation without  the  participation  of  the  governor.  There  seems 
to  be  little  question  that  the  court  was  entirely  correct  in  the 

1  People  v.  Hoge,  55  Cal.  612  (1880) ;   infra,  259. 

8  79  Cal.  173  (1889).  It  was  also  contended  in  this  case  that  some  of  the  provi- 
sions of  the  charter  were  inconsistent  with  existing  laws  and  that  therefore  the  whole 
charter  was  void.  But  the  court  refused  to  sustain  this  contention.  Infra,  239. 


206  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

construction  thus  placed  upon  the  literal  wording  of  the  constitu- 
tion. But  whether  there  was  justification  for  holding  that  the  legis- 
lature might  ratify  the  charter  by  means  of  a  joint  resolution 
f  instead  of  conforming  to  all  the  other  requirements  of  the  consti- 
J  tution  in  respect  to  the  enactment  of  a  law  by  a  bill  is  open  to 
question.  The  point  may  seem  to  be  trivial  but  it  really  proved 
to  be  of  far-reaching  importance ;  for  a  year  after  the  decision  of 
the  Brooks  case  the  court  decided  a  most  important  case  affecting 
the  powers  of  cities  under  freeholders'  charters  —  the  case  of  <the 
People  v.  Toal 1  —  upon  the  express  ground  that  the  legislature 
in  ratifying  such  a  charter  by  joint  resolution  was  not  engaged 
in  the  enactment  of  a  law. 

Is  a  Home  Rule  Charter  a  Law? 

The  Toal  case  involved  the  legality  of  a  police  court  established 
by  the  freeholders'  charter  of  Los  Angeles.  It  was  held  that  the 
constitution  provided  for  the  establishment  of  inferior  courts  "  by 
the  legislature  "  and  for  the  fixing  of  the  jurisdiction  of  such  courts 
"  by  law  " ;  that  it  also  provided  elaborate  procedure  for  the  enact- 
ment of  a  law  and  the  approval  of  the  governor ;  that  a  freeholders' 
charter,  being  ratified  by  the  legislature  with  much  less  formality 
than  was  required  for  the  enactment  of  a  law  and  without  submis- 
sion to  the  governor,  was  not  established  by  law  within  the  meaning 
of  the  constitution;  and  that  an  "inferior  court"  sought  to  be 
created  by  such  a  charter  was  in  consequence  a  nullity.  Said  the 
court: 

A  provision  in  a  charter,  adopted  by  mere  resolution  of  approval  and 
not  by  law,  establishing  inferior  courts,  and  giving  them  jurisdiction,  is 
clearly  in  conflict  with  the  constitutional  provisions  prescribing  the  mode 
by  which  laws  shall  be  enacted. 

In  order  to  test  the  soundness  of  the  court's  decision  in  this 
case  it  is  necessary  to  consider  several  points  of  interest  and  im- 
portance. In  the  first  place,  the  constitution  expressly  declared 
that  a  freeholders'  charter  when  ratified  by  the  legislature  should 

1  85  Cal.  333.     1890. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA          207 

become  the  "organic  law"  of  the  city,  thus  employing  the  very 
term  —  "law"  — which  the  court  in  effect  declared  such  a  char- 
ter not  to  be.  In  the  second  place,  the  constitution  declared  that 
this  charter  should  "supersede  any  existing  charter,  and  all 
amendments  thereof,  and  all  laws  inconsistent  with  such  charter." 
The  case  of  Miner  v.  Justices'  Court,1  which  eight  years  later  re- 
affirmed the  decision  of  the  Toal  case,  emphasized  perhaps  more 
clearly  than  did  the  earlier  case  the  somewhat  astonishing  propo- 
sition that  a  freeholders'  charter  which  was  apparently  not  a 
"law"  within  the  meaning  of  the  constitutional  provision  relating 
to  courts,  could  nevertheless  repeal  a  law.  In  the  Miner  case  it 
was  held  that  neither  the  provision  of  the  legislative  charter  of 
1878,  by  which  two  justices  of  the  peace  were  established  for  the 
town  of  Berkeley,  nor  the  provision  of  the  freeholders'  charter  of 
1895,  by  which  a  similar  establishment  was  sought  to  be  made, 
had  any  validity.  It  was  contended  there  that  if  the  provision  of 
the  freeholders'  charter  in  this  regard  was  void,  then  the  provi- 
sion of  the  old  charter  remained  in  force.  But  the  court  answered 
that  the  contrary  of  this  contention  was  established  because  the 
constitution  expressly  declared  that  the  freeholders'  charter  should 
"supersede  any  existing  charter."  This  operated  to  repeal  the 
old  charter  in  toto.  While,  therefore,  the  provision  of  the 
old  charter  creating  the  two  justices  was  abrogated  by  the  rati- 
fication of  the  new,  the  provision  of  the  new  charter  upon  this  sub- 
ject was  without  force  because  the  constitution  required  that 
inferior  courts  should  be  established  only  by  law. 

Identical  in  effect  was  the  decision  of  Ex  parte  Sparks  2  handed 
down  in  the  same  year.  In  this  case  the  contention  that  the  free- 
holders' charter  of  Sacramento  had  merely  continued  the  police 
court  established  by  the  old  legislative  charter  was  rejected.  The 
court  declared : 

The  argument  against  the  power  to  continue  in  existence  an  existing 
court,  which  would  otherwise  be  abrogated  by  the  adoption  of  the  new 
charter,  is  stronger,  if  there  is  a  difference,  than  any  argument  that  can 
be  made  against  the  power  to  create  a  police  court  by  the  charter. 

1  121  Cal.  264.     1898.  2  120  Cal.  395.     1898. 


208     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Upon  the  specific  point  that  a  freeholders'  charter,  which  was 
in  effect  held  to  be  not  a  law,  could  nevertheless  repeal  a  law,  it 
was  said  by  Judge  Temple: 

The  old  charter  is  not  repealed  because  it  is  so  enacted  in  the  new 
charter,  or  because  its  provisions  are  inconsistent  with  those  of  the  new 
charter.  The  new  charter  does  not  abrogate  the  old  ex  proprio  vigore,  but 
because  the  constitution  declares  that  such  consequence  should  follow. 

The  reason  of  this  is  sufficiently  obvious.  It  is  not  the  passage  of  an 
ordinary  law,  but  the  establishment  of  a  government.  The  new  is  to  take 
the  place  of  the  old,  however  dissimilar,  and  although  some  parts  of  the 
old  charter  have  no  corresponding  provisions  in  the  new,  there  is  no  pre- 
sumption that  anything  is  continued,  for  the  new  scheme  is  deemed  com- 
plete in  itself  and  to  provide  all  that  is  desired.  That  which  is  omitted  is 
omitted  because  not  desired.1 

Although  it  is  a  well-known  fact  that  municipal  charters  enacted 
by  the  legislature  do  not  commonly  repeal  provisions  of  existing 
charters  except  by  express  declaration  or  because  of  obvious  in- 
consistency and  conflict  of  provision,  it  may  well  be  that  this  was 
a  correct  interpretation  of  the  language  of  the  constitution.  The 
effect  of  a  freeholders'  charter  upon  the  charter  that  it  replaced 
was,  in  other  words,  precisely  the  same  as  that  of  a  new  state  con- 
stitution upon  an  old.  The  new  blotted  the  old  completely  out 
of  existence.  But  this  construction  of  the  terms  of  the  constitu- 
tion, far  from  sustaining  the  view  that  a  freeholders'  charter  was 
not  a  law  within  the  meaning  of  the  entire  constitution,  would  seem 
to  have  been  an  almost  unanswerable  argument  to  the  contrary. 

In  the  third  place,  as  bearing  upon  the  soundness  of  the  doc- 
trine laid  down  in  the  case  of  the  People  v.  Toal  and  the  subsequent 
reafnrmative  cases  mentioned,  it  is  to  be  noted  that  the  Califor- 
nia court  has  in  other  cases  expressed  opinions  that  are  not  wholly 
in  harmony  with  this  doctrine.  Thus  in  the  case  of  the  People  v. 
Gunn,2  decided  at  the  same  term  of  court  as  the  Toal  case,  the 
charter  of  San  Diego  was  attacked  upon  the  ground  that  there  had 
been  in  its  adoption  irregularities  in  the  procedure  required  by  the 
constitution.  The  lower  court  refused  to  admit  evidence  that 

1  For  the  view  of  Judge  Temple  as  expressed  in  this  case  of  the  effect  of  the  consti- 
tutional amendments  of  1896,  see  infra,  212.  2  85  Cal.  238.  1890. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA          209 

was  offered  to  show  the  existence  of  these  irregularities  upon  the 
ground  that  the  act  of  the  legislature  in  ratifying  the  charter  was  a 
"political"  rather  than  a  legislative  act;  that  it  was  the  business 
of  the  legislature  to  determine  before  it  approved  the  charter 
whether  the  constitutional  procedure  had  been  complied  with; 
and  that  in  consequence  the  legislative  ratification  was  a  conclu- 
sive determination  of  the  matter  and  binding  upon  the  judiciary.1 
If  the  act  of  the  legislature  was  not  an  act  of  lawmaking,  and  if 
the  freeholders'  charter  was  not  enacted  "by  law,"  it  would  seem 
that  this  argument  of  the  lower  court  was  not  without  some  force. 
But  the  supreme  court  wholly  rejected  this  view,  declaring  that  the 
legislature 

was  not  called  upon  or  authorized  by  the  constitution  to  adjudicate  upon 
the  question  of  whether  the  lawmakers  —  the  municipal  authorities  and 
people  of  San  Diego  —  had  proceeded  regularly  in  the  framing  and  adop- 
tion or  passage  of  the  law  or  not.  That  was  a  judicial  question. 

Here  then  was  an  express  declaration  by  the  court  to  the  effect 
that  a  freeholders'  charter  was  a  "law"  of  some  species,  if  not 
within  the  requirements  of  the  constitution  in  respect  to  the  enact- 
ment of  a  law,  and  that  the  municipal  authorities  and  the  people 
of  the  city  were  the  makers  of  that  "law." 

Again  in  the  case  of  Frick  v.  Los  Angeles,2  where  it  was  contended 
that  the  charter  provisions  regulating  the  manner  in  which  the 
city  might  enter  into  contracts  were  subject  to  and  controlled  by 
the  general  laws  of  the  state  relating  to  contracts,  the  court  said : 

As  to  the  provision  of  section  1622  of  the  Civil  Code,  that  all  contracts 
may  be  oral  except  when  required  by  statute  to  be  in  writing,  if  we  con- 
ceded that  it  has  relevancy  to  the  controversy  here,  we  are  yet  clearly  of 
the  opinion  that  the  charter,  to  the  extent  of  its  purposes  as  a  scheme  of 
municipal  government,  is  a  "statute"  within  the  meaning  of  that  section ; 
it  is  undoubtedly  a  law,  though  of  local  operation ;  the  constitution  de- 
clares if  to  be  the  organic  law  of  the  city  (Const.,  Art.  XI,  sec.  8) ;  it  is  of 
course  a  written  law,  and  for  many  purposes  the  terms  "statute"  and 
"written  law"  are  used  indifferently. 

1  See  also  the  opinion  of  Temple,  J.,  in  Fragley  v.  Phelan,  126  Cal.  383  (1899), 
infra,  265,  where  this  view  was  again  put  forward,  although  it  was  not  concurred  in 
by  any  other  judge.  2  115  Cal.  512.  1896. 


210     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  is  to  be  remarked  moreover  that  when  a  number  of  years 
afterward  the  court  was  called  upon  in  numerous  cases  to  deter- 
mine what  powers  a  city  might  " confer  upon  itself"  in  a  free- 
holders' charter,  the  very  liberal  view  was  taken,  as  will  be  shown 
a  little  later  on,1  that  such  a  charter  might  grant  any  power  which 
in  the  absence  of  constitutional  limitation  the  legislature  might 
grant  in  a  legislative  charter.  In  assuming  this  attitude  the  court 
asserted  more  than  once  that  such  a  charter  "has  the  same  effect 
as  that  of  a  law  passed  by  bill."  Thus  in  Sheehan  v.  Scott,2  where 
the  somewhat  absurd  proposition  was  put  forward  that  a  free- 
holders' charter  could  not  lay  down  qualifications  for  municipal 
officers,  the  court  said : 

The  authority  to  provide  a  municipal  government  for  a  city  is  referable 
to  the  lawmaking  power  of  the  state,  and  the  enactment  of  a  charter  for  a 
municipality  is  a  legislative  act.  .  .  .  The  people  have  .  .  .  withdrawn 
from  the  senate  and  assembly  the  legislative  authority  of  the  state  in 
reference  to  municipal  government  for  cities,  to  the  extent  that  neither  of 
these  bodies  can  exercise  any  legislative  authority  in  the  enactment  of  a 
charter  for  such  a  municipality  until  after  its  provisions  have  been  formu- 
lated and  approved  by  the  city  itself  in  the  manner  prescribed  by  section 
8  aforesaid,  and  have  limited  their  legislative  authority  to  the  mere 
approval  or  rejection  of  the  charter  so  formulated.  The  authority  thus 
withdrawn  from  the  legislature  and  given  to  the  city  is  none  the  less  a 
part  of  the  lawmaking  power  of  the  state  because  it  is  contained  in  the 
article  upon  "Cities,  Counties,  and  Towns,"  rather  than  in  the  article  upon 
the  "Legislative  Department,"  and  the  act  of  the  city  in  formulating  the 
charter  and  determining  the  provisions  to  be  included  therein  has  the  same 
force  and  authority  as  would  a  charter  with  the  same  provisions  enacted 
by  a  legislature  that  was  not  restrained  by  any  constitutional  limitations. 
Its  adoption  by  the  city  and  approval  by  the  legislature  in  the  manner 
prescribed  by  said  section  is  the  mode  prescribed  by  the  constitution  for 
its  enactment,  and  has  the  same  effect  as  that  of  a  law  which  is  passed  by 
bill,  under  the  provisions  of  section  15  of  Article  IV.  It  must  be  held, 
therefore,  that  the  provisions  of  the  charter  of  San  Francisco  in  reference 
to  qualifications  for  eligibility  to  the  office  of  tax  collector  have  been 
established  by  the  legislative  authority  of  the  state  and  are  valid. 

Again  in  In  re  Pfahler,3  where  the  legality  of  the  initiative  and 
referendum  provisions  of  the  freeholders'  charter  of  Los  Angeles 

1  Infra,  Ch.  X.         »145  Cal.  684  (1905) ;  infra,  364.         3 150  Cal.  71.     1906. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         211 

was  sustained,1  the  court  assumed,  although  merely  "  for  purposes 
of  argument,"  that  "the  legislature,  in  approving  by  concurrent 
resolution  a  charter  framed  by  any  city/'  actually  delegates  legis- 
lative power  to  such  city.  It  cannot  be  said  that  this  was  an 
unmistakable  recognition  of  the  fact  that  the  ratifying  act  of  the 
legislature  was  an  act  of  law-giving.  It  was  merely  an  assump- 
tion ;  but  under  any  reasonable  application  of  the  doctrine  of  the 
Toal  case  it  was  an  assumption  which,  being  wholly  contrary  to 
the  "law  of  the  constitution"  as  interpreted  by  the  court,  should 
not  have  been  indulged  in. 

It  was  in  the  case  of  Rothschild  v.  Bantel,2  however,  that  the 
court  gave  voice  to  an  opinion  that  appears  to  be  most  completely 
at  variance  with  its  other  utterances  upon  this  point.  In  an  earlier 
case  3  it  had  been  held  that  an  express  provision  of  the  constitu- 
tion 4  prohibited  the  deposit  of  municipal  funds  in  any  bank.  In 
1906  the  constitution  was  amended  so  as  to  allow  such  deposits 
to  be  made  "in  such  manner  and  under  such  conditions  as  may 
be  provided  by  law."  5  It  was  contended  that  the  limitation  thus 
expressly  imposed  operated  to  prevent  the  determination  by  the 
provisions  of  a  freeholders'  charter  of  the  manner  in  which  and  the 
conditions  under  which  these  deposits  might  be  made,  just  as  the 
requirement  that  inferior  courts  should  be  established  by  law  had 
prevented  their  being  established  by  such  charters.  This  conten- 
tion the  court  disposed  of  as  follows  : 

The  words  "in  such  manner  and  under  such  conditions  as  may  be  pro- 
vided by  law,"  following  this  provision,  are  simply  a  limitation  upon  the 
permission  before  given,  the  effect  thereof  being  that  such  deposits  may 
be  made  only  in  the  manner  and  under  the  conditions  provided  by  such 
laws  as  may  properly  be  enacted  in  regard  thereto.  As  to  the  state,  any 
county,  or  any  municipality  organized  under  the  general  municipal  cor- 
poration act,  such  laws  providing  for  the  deposit  and  the  manner  and 
conditions  thereof,  may  undoubtedly  be  enacted  by  the  legislature  of  the 
state.  But  when  we  come  to  the  manner  of  the  safekeeping  of  the  moneys 
of  a  municipality  having  a  freeholders'  charter,  "the  organic  law"  of  the 

1  Infra,  318. 

2  152  Cal.  5.     1907. 

3  Yarnell  v.  City  of  Los  Angeles,  87  Cal.  603.     1891. 

4  Art.  XI,  sec.  16.  6  Art.  XI,  sec.  16£. 


212     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

city  (Const.,  Art.  XI,  sec.  8),  so  far  as  it  speaks  upon  the  matter  at  all,  is, 
subject  to  the  constitution,  the  paramount  law,  and,  except  as  provided 
in  the  constitution,  nothing  contrary  thereto  can  be  "provided  by  law." 
In  such  a  case  the  charter  provision  is  the  "law"  referred  to  in  the  consti- 
tutional provision.  The  provision  is  not  that  the  deposit  may  be  made  in 
such  manner  and  under  such  conditions  as  may  be  provided  by  the  legis- 
lature, or  by  any  particular  kind  of  law,  but  is  simply  "as  may  be  provided 
by  law." 

Now  it  is  manifest  from  the  above  review  of  cases  that  in  the 
decisions  of  the  California  court  upon  this  point  there  is  a  distress- 
ing amount  of  inconsistency.  It  is  difficult  to  understand  how  on 
the  one  hand  a  freeholders'  charter  is  enacted  "not  by  law,"  as 
was  asserted  in  the  Toal  case,  and  yet  on  the  other  hand  is  the 
"organic  law"  of  the  city,  repeals  laws,  is  a  "law"  passed  by  the 
local  authorities  and  people  of  the  city,  is  a  "statute"  as  referred 
to  in  a  general  law  of  the  state,  "has  the  same  effect  as  a  law  which 
is  passed  by  bill,"  may  be  assumed  by  reason  of  legislative  ratifi- 
cation to  be  a  delegation  of  power  from  the  legislature,  and  is  a 
"law"  as  that  term  was  used  in  the  amendment  of  1906  relating 
to  municipal  deposits.  It  would  appear  at  first  view  that  the  Toal 
case  and  the  other  cases  affirming  the  doctrine  there  laid  down  have 
been  so  far  modified  by  later  decisions  as  to  have  been  practically 
overruled;  but  such  is  evidently  not  the  view  of  the  California 
court.  In  most  of  the  cases  mentioned  above  in  which  opinions 
were  expressed  that  seemed  to  be  out  of  harmony  with  the  doctrine 
of  the  Toal  case,  that  important  case  was  not  even  mentioned. 
Moreover,  as  late  as  1908  the  Toal  case  was  cited  with  approval 
by  the  court  and  without  any  intimation  that  it  had  been  modified 
in  the  slightest  degree.1  In  the  above-mentioned  case  of  Ex  parte 
Sparks,  which  was  decided  soon  after  the  adoption  in  1896  of  cer- 
tain constitutional  amendments  which  greatly  extended  the 
scope  of  municipal  home  rule  in  California  —  amendments  which 
are  reserved  for  later  discussion  2  —  Judge  Temple  expressed  the 
view  that,  while  it  had  been  decided  that  the  legislature  in  ratify- 
ing a  freeholders'  charter  was  not  engaged  in  law-making,  this 

1  Fleming  t>.  Hance,  153  Cal.  162  (1908) ;  infra,  257,  372,  383. 
» Infra,  Chs.  IX-XI. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         213 

question  should  in  the  light  of  these  amendments  be  regarded  as 
reopened  and  that  such  ratification  should  be  declared  to  be  "a 
special  mode  for  the  enactment  of  a  law  by  the  legislature."  But  the 
other  judges  who  concurred  in  the  judgment  that  was  rendered 
made  a  point  of  refusing  to  express  any  opinion  on  this  subject 
upon  the  ground  that  it  was  unnecessary  to  the  decision  of  the  case 
at  bar.  Nor  has  the  majority  of  the  court,  so  far  at  least  as  their 
opinions  disclose,  ever  expressed  any  intention  of  accepting  this 
view.1  Even  in  the  Rothschild  case,  where  the  point  to  be  deter- 
mined was  so  very  nearly  identical  with  that  which  was  determined 
in  the  Toal  case,  this  earlier  and  leading  case  was  not  referred  to ; 
and  the  only  effort  to  distinguish  the  two  that  can  possibly  be  said 
to  have  been  made  was  the  attention  that  was  called  to  the  fact 
that  the  constitutional  amendment  in  respect  to  municipal  de- 
posits did  not  say  "as  provided  by  the  legislature"  but  simply  "as 
provided  by  law."  The  constitutional  provisions  which  were 
applied  in  the  Toal  case  referred  in  one  section  to  "such  inferior 
courts  as  the  legislature  may  establish,"  and  in  another  section 
declared  that  "the  legislature  shall  fix  by  law  the  jurisdiction"  of 
such  courts.  It  is  manifest,  however,  that  this  point  of  distinc- 
tion —  if  such  the  court  without  reference  intended  it  to  be  —  was 
somewhat  hairsplitting  in  its  nicety.  For  since  a  freeholders7 
charter  was  in  the  Rothschild  case  expressly  declared  to  be  a 
law,  the  jurisdiction  of  any  inferior  court  for  which  it  provided 
was  certainly  fixed  by  law ;  and  since  such  a  charter  had  no  valid- 
ity without  action  by  the  legislature,  it  certainly  might  have  been 
held  with  reason  that  the  legislature  by  its  indispensable  act  of 
ratification  "established"  and  "fixed"  the  jurisdiction  of  the  in- 
ferior court  for  which  the  charter  provided.2 

1  The  opinion  of  Temple,  J.,  in  People  ex  rel.  Lawlor  v,  Williamson,  135  Cal.  415 
(1902),  was  founded  upon  this  view  and  was  concurred  in  by  Henshaw,  J.,  and 
Beatty,  C.  J.     See  infra,  287. 

2  The  effect  of  the  opinion  to  the  contrary  was  to  read  into  the  constitutional  pro- 
vision the  words  "without  other  participation,"  so  as  to  make  the  acts  of  establish- 
ing and  fixing  the  jurisdiction  of  inferior  courts  acts  of  the  legislature  alone.     With 
quite  as  much  show  of  reason,  it  would  seem,  might  it  have  been  held  that  the  consti- 
tution excluded  the  governor  from  participation  in  the  establishment  of  inferior 
courts ;  for  although  the  fixing  of  jurisdiction  was  required  to  be  by  law,  the  consti- 


214     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  the  Toal  case  the  court  laid  great  emphasis  upon  the  fact 
that  a  freeholders'  charter  was  enacted  "not  by  law"  because  in 
ratifying  such  a  charter  the  legislature  did  not  follow  the  procedure 
required  for  the  enactment  of  a  law  and  did  not  submit  the  charter, 
as  required  by  the  constitution  for  the  enactment  of  a  law,  to  an 
authority  outside  the  legislature  —  to  wit,  the  governor.  In  other 
words,  except  in  the  somewhat  extraordinary  instance  of  a  vote  over- 
riding the  governor's  veto,  the  constitution  made  no  provision  for 
the  enactment  of  any  law  without  the  participation  of  some  authority 
in  addition  to  the  legislature  as  such.  In  the  enactment  of  laws  in 
general  the  legislature  was  only  a  participant,  although  it  must  be 
admitted  that  it  was  the  principal  participating  authority. 

By  reference  to  another  article  of  the  constitution  the  court 
certainly  might  have  found  that  a  peculiar  and  exceptional  provi- 
sion was  made  for  the  enactment  of  certain  municipal  charters, 
which  were  referred  to  as  laws  and  which  repealed  laws.  In  the 
enactment  of  these  laws  the  legislature  was  also  a  participant, 
although  not  the  chief  participant.  In  their  enactment  the  leg- 
islature occupied  a  position  somewhat  like  that  of  the  governor  in 
the  enactment  of  laws  in  general.  Like  the  governor  as  to  general 
laws,  it  could  veto  these  peculiar  laws,  the  only  difference  being 
that  its  veto  was  absolute  instead  of  suspensive.  The  constitu- 
tion had  nothing  to  say  as  to  the  "  informality "  of  the  manner  in 

tution  did  not  specifically  require  that  the  legislature  should  establish  such  courts 
by  law.  Now  as  every  one  knows,  the  legislature  may  act  by  other  means  than  by 
law,  and  in  some  of  the  acts  of  the  legislature  the  governor  does  not  participate. 
If  therefore  the  rule  of  strict  construction  had  been  applied  with  consistent  rigidity 
to  the  provision  relating  to  the  establishment  of  inferior  courts,  it  might  have  been 
held  that  the  legislature  could  establish  such  courts  by  concurrent  resolution  with- 
out submission  to  the  governor,  upon  the  theory  that  when  the  constitution  said  the 
"legislature  may  establish"  it  meant  to  declare  that  this  act  of  establishment  should 
be  by  the  legislature  alone  —  without  any  other  participating  authority.  Indeed 
argument  of  this  kind  would  seem  to  be  even  stronger  than  that  which  was  applied 
to  the  case  of  freeholders'  charters  for  the  reason  that  the  constitution  did  not  any- 
where indicate,  except  by  implication  of  a  very  general  character,  that  the  act 
of  the  legislature  in  establishing  inferior  courts  should  be  regarded  as  a  "law"; 
whereas  the  constitution  expressly  provided  that  a  freeholders'  charter  should  be  the 
"organic  law"  of  the  city  and  should  operate  to  repeal  "laws."  There  is  no  ques- 
tion, however,  that  the  courts  would  have  regarded  as  absurd  the  contention  that 
inferior  courts  could  be  established  in  this  manner  by  the  legislature  alone. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         215 

which  the  legislature  participated  in  the  enactment  of  these  laws, 
except  that  it  did  perhaps  imply  that  they  should  not  be  submitted 
to  the  governor.  Such  other  informality  as  obtained  had  been 
sanctioned  merely  by  a  judgment  of  the  court.  It  was  not  estab- 
lished by  any  unavoidable  terms  of  the  constitution.  In  the  enact- 
ment of  laws  in  general  as  well  as  of  this  peculiar  class  of  laws  the 
legislature  was,  therefore,  simply  a  participating  authority,  the 
difference  being  chiefly  in  the  degree  and  the  order  of  participa- 
tion. It  may  be  that  it  would  have  been  strange  to  the  ear  had 
the  constitution  declared  that  the  governor  —  a  participant  by 
reason  of  his  limited  veto  power  in  the  making  of  laws  in  general 
—  should  fix  the  jurisdiction  of  inferior  courts  by  law;  but  if  the 
constitution  had  made  such  declaration  and  had  provided  only 
one  method  for  the  enactment  of  laws  and  one  means  for  the  par- 
ticipation of  the  governor  in  such  enactment,  it  is  scarcely  to  be 
questioned  that  this  declaration  would  in  effect  have  been  identical 
with  that  which  was  made  —  to  wit,  that  the  legislature  should 
fix  such  jurisdiction  by  law. 

By  a  parity  of  reasoning  it  may  be  argued  that  it  was  somewhat 
strange  for  the  constitution  to  declare  that  the  legislature  —  a 
participant  by  reason  only  of  its  absolute  power  of  veto  in  the  mak- 
ing of  laws  in  the  nature  of  freeholders'  charters  —  should  fix  the 
jurisdiction  of  inferior  courts  by  law,  if  it  was  intended  that  the  laws 
establishing  such  jurisdiction  might  be  of  this  peculiar  class  for  which 
provision  was  made  in  the  constitution.  But  since  the  constitution 
did  make  such  declaration  and  provided  a  peculiar  method  for  the 
enactment  of  laws  of  this  class  and  a  means  for  the  participation  of 
the  legislature  in  such  enactment,  was  the  court  justified  in  assert- 
ing that  the  jurisdiction  of  such  courts  as  fixed  in  laws  of  this  kind 
was  not  fixed  by  the  legislature  and  was  not  fixed  by  law  f 

Moreover,  even  if  the  framers  of  the  constitution  fully  intended, 
by  the  expression  that  was  used,  to  permit  the  determination  of  this 
matter  of  jurisdiction  by  laws  in  the  nature  of  freeholders'  charters, 
there  was  considerable  justification  for  the  employment  of  the 
simple  and  comprehensive  declaration  to  the  effect  that  the 
"legislature  shall  fix  by  law."  For  it  must  be  remembered  that 


216  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

this  matter  could  not  under  any  circumstances  be  determined 
exclusively  by  freeholders'  charters,  which  could  be  adopted  only 
by  certain  cities  and  which  need  not  be  adopted  by  any  cities. 
To  the  extent,  therefore,  that  the  matter  was  not  fixed  by  the 
legislature  under  laws  of  this  peculiar  class  it  was  indispensable 
that  it  should  be  determined  by  the  legislature  under  laws  of  the 
more  usual  character.  What  was  more  reasonable  under  these 
circumstances  than  the  use  of  the  broad  declaration  that  was  made 
—  a  declaration  which  could,  without  too  violent  twisting  of  terms, 
be  construed  to  include  laws  of  both  classes  ? 

The  probable  truth  of  the  matter  is,  of  course,  that  the  provi- 
sions of  the  constitution  in  respect  to  courts  were  adopted  without 
any  consideration  whatever  of  the  provisions  relating  to  free- 
holders' charters.  Even  so,  it  would  certainly  seem  that  there 
was  no  absolute  contradiction  of  terms;  and  to  assert  that  the 
constitution  created  the  incongruous  situation  in  which  a  free- 
holders' charter  was  a  "law"  that  was  enacted  "not  by  law" 
seems  to  have  been  not  only  an  unnecessary  but  also  a  wholly 
unwarranted  equivocation.  As  Judge  Beatty  declared  in  his 
dissenting  opinion  in  the  Toal  case,  "to  make  the  constitution 
consistent  and  harmonious  as  a  whole,  verbal  discrepancies  must 
be  disregarded."  There  is  no  apparent  reason  why  it  might  not 
have  been  held  that  the  legislature,  in  giving  its  sanction  without 
power  of  amendment  to  a  freeholders'  charter,  was  engaged  in  per- 
forming its  constitutional  function  in  the  enactment  of  a  partic- 
ular kind  of  law,  for  the  passage  of  which  the  constitution 
prescribed  a  procedure  different  from  that  prescribed  for  the  enact- 
ment of  all  other  laws;  that  such  an  enactment  was  in  every 
possible  respect  a  law  within  the  meaning  of  the  constitution; 
and  that  where  the  constitution  ordained  that  the  legislature  should 
do  this  or  that  by  law,  that  function  the  legislature  fulfilled  when  it 
participated  in  the  enactment  of  one  of  these  peculiar  laws.  In 
other  words  it  might  have  been  held  that  the  provisions  of  the 
constitution  regulating  the  passage  of  laws  in  general  did  not  in 
any  wise  affect  the  character  of  freeholders'  charters  as  laws  nor  the 
nature  of  the  legislative  act  of  ratification  as  an  act  of  law-making, 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         217 

this  rule  being  rested  upon  the  well-known  principle  that  the  special 
and  exceptional  provision  in  a  constitution,  to  the  extent  of  the 
exception  created,  takes  precedence  over  and  controls  any  general 
provision  with  which  it  is  in  open  conflict  or  slight  disharmony. 

It  is  of  some  interest  to  inquire  what  would  have  been  the 
effect  upon  the  right  of  home  rule  in  California  had  the  court 
applied  this  interpretation  to  the  provisions  of  the  constitution  in 
question.  In  the  first  place,  it  would  have  been  difficult  for  the. 
courts  to  declare  void  the  provisions  of  certain  freeholders'  char- 
ters that  established  police  courts.  As  will  be  brought  out  a 
little  later,1  the  California  court  has  never  adopted  the  view  that 
a  city  in  framing  a  charter  "for  its  own  government"  was  limited 
to  providing  for  those  matters  which  may  be  regarded  as  of  "local" 
as  distinguished  from  "state"  concern.  In  the  absence  of  con- 
flicting state  law2  the  court  could  not  have  declared,  therefore, 
that  police  courts  were  a  part  of  the  judicial  system  of  the  state 
and  as  such  were  a  matter  of  state  concern  and  therefore  ultra 
vires  to  the  city  which  attempted  to  exercise  the  home  rule  powers 
conferred  upon  it  by  the  constitution.  It  ought  to  be  mentioned 
perhaps  that  provisions  for  police  courts  were  the  only  provisions 
of  freeholders'  charters  that  were  ever  held  void  upon  the  ground 
that  such  a.  charter  was  not  enacted  by  law.  The  practical  effect 
of  this  doctrine,  therefore,  as  a  general  doctrine  of  construction, 
was  apparently  not  very  far  reaching. 

In  the  second  place,  it  is  to  be  remarked  that  had  the  court 
declared  a  freeholders'  charter  to  be  a  law  enacted  by  the  legisla- 
ture under  special  procedure  every  such  charter  would  have  been 
in  the  nature  of  a  "special  law."  3  Now  the  relation  between 
general  and  special  laws  is  a  matter  of  common  knowledge.  A 
special  law,  of  course,  with  or  without  reference,  supersedes  a  gen- 

1  Infra,  Ch.  X,  passim.  *  Infra,  241-245. 

•  Section  6  of  Art.  XI  declared  that  municipal  corporations  should  not  be  created 
by  "special  laws"  ;  but  the  context  shows  clearly  that  the  laws  here  referred  to 
were  laws  enacted  under  the  usual  constitutional  procedure.  This  provision  need 
not,  therefore,  have  been  construed  to  mean  that  laws  in  the  nature  of  freeholders' 
charters,  enacted  by  the  legislature  under  the  exceptional  procedure  provided,  were 
not  valid  "special  laws." 


218     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

eral  law  previously  enacted ;  while  a  general  law  does  not  by  im- 
plication usually  repeal  a  special  law  previously  enacted.1  Would 
this  have  been  the  rule  applied  to  determine  the  relation  between 
general  laws  enacted  by  the  legislature  and  the  provisions  of  free- 
holders' charters  in  California?  Apparently  not;  for  the  consti- 
tution expressly  declared  that  such  charters  should  "be  subject 
to  and  controlled  by  general  laws."  Under  any  reasonable  inter- 
pretation of  this  provision  it  could  certainly  have  been  held  that 
a  special  law  in  the  nature  of  a  freeholders'  charter  did  not  super- 
sede a  general  law  previously  enacted,  even  though  the  legislature 
had  been  a  participant  in  the  subsequent  enactment  of  such 
special  law.  If  the  legislature  desired  to  have  such  special  law 
control,  then  the  legislature  should  amend  the  general  law  so  as 
to  permit  such  a  result.  And  it  might  have  been  held  also  that  a 
general  law  did  operate  to  control  a  previously  enacted  free- 
holders' charter  in  the  nature  of  a  special  law,  even  though  this 
special  law  was  in  no  wise  referred  to  in  the  general  law.  In  other 
words,  it  might  have  been  held  that  the  express  provision  of  the 
constitution  referred  to  prevented  the  application  of  the  ordinary 
rule  of  construction  governing  the  relation  between  general  and 
special  laws  so  far  as  these  latter  consisted  of  freeholders'  charters. 
Such  an  interpretation  would  have  placed  freeholders'  charters  in 
their  relation  to  "general  laws"  exactly  where  they  were  in  point  of 
fact  placed  by  the  decisions  of  the  courts ;  but  it  would  have  wholly 
obviated  the  necessity  of  asserting  in  effect  that  these  charters  were 
not  laws  enacted  by  the  legislature  within  every  requirement  of  the 
constitution.  Of  course,  in  any  case,  the  real  point  of  importance 
here  would  be  the  judicial  definition  of  the  term  "general  laws"  — 
a  subject  which  is  discussed  in  the  two  succeeding  chapters. 

Actual  Results  of  the  Requirement  of  Legislative  Ratification  of 
Charters  and  Amendments 

In  the  California  convention  of  1879  the  provision  which  re- 
quired that  freeholders'  charters  should  be  ratified  by  the  legisla- 

1  See  People  v.  Hill,  125  Cal.  16.     1899. 


HOME  RULE  PROCEDURE  IN   CALIFORNIA          219 

ture  without  power  of  amendment  was  wrung  from  the  advocates 
of  home  rule  as  a  highly  important  concession  to  the  principle  of 
central  control  over  cities.  The  legislature  of  California  has  never 
failed  to  ratify  a  charter  or  amendment  submitted  to  it  for  ap- 
proval, although  in  one  or  two  instances  a  vigorous  fight  for  rejec- 
tion has  been  made.  Indeed  the  joint  resolutions  by  which  these 
charters  and  amendments  receive  legislative  sanction  and  are 
thus  given  validity  early  became  in  most  instances  little  more 
than  a  formality.1  This  may  have  been  due  in  part  to  a  liber- 
ality of  attitude  assumed  by  the  legislature  toward  the  right  of 
home  rule  that  was  created  by  the  constitution.  But  it  was  also 
due  in  large  part  to  the  fact  that  the  courts  almost  immediately 
declared  in  effect  that  this  ratifying  act  of  the  legislature  was  not 
an  act  of  law-making,  and  to  the  further  fact  that  the  legislature 
recognized  the  judicial  branch  of  the  government  to  be  the  proper 
authority  for  keeping  these  charters  "within  legitimate  bounds" 
and  determining  their  conformity  to  the  general  laws  of  the  state. 
The  legislative  intention  that  this  or  that  "general  law"  should 
supersede  the  provisions  of  municipal  charters  was  clearly  indi- 
cated from  time  to  time;  but  this  was  a  situation  which  was 
utterly  unaffected  by  the  fact  that  the  legislature  participated  in 
the  making  of  freeholders'  charters.  It  resulted  from  the  con- 
stitutional requirement  that  all  charters  should  be  "subject  to  and  /^ 
controlled  by  general  laws" — a  requirement  which,  as  already 
indicated,  would  have  subordinated  charter  provisions  to  the  con- 
trol of  general  laws  with  or  without  the  scheme  of  legislative 
ratification.  This  scheme  added  nothing  to,  and  took  nothing 
from,  the  subordination  thus  provided  for.  It  cannot  be  said, 
therefore,  that  the  requirement  of  legislative  approval  in  Califor- 
nia accomplished  much  of  what  its  advocates  expected  or  its  op- 
ponents feared.  Its  net  result  seems  to  have  been  the  introduc--yu 
tion  of  a  degree  of  confusion  and  inconsistency  in  the  views  of  the 
courts  as  to  the  nature  of  a  freeholders'  charter  and  the  invali- 
dation of  certain  charter  provisions  upon  the  highly  questionable 

1  On  this  point,  see  the  opinion  expressed  in  Harrison  v.  Roberts,  145  Cal.  173. 
1904. 


220     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

ground  that  such  charters  were  not  laws  enacted  by  the  legislature 
within  the  requirements  of  the  constitution. 

Apart  from  the  fact  that  certain  important  charter  provisions 
have  been  held  void  upon  the  ground  that  a  freeholders'  charter 
was  not  enacted  by  law,  the.  only  justification  for  this  somewhat 
extended  discussion  of  the  legal  nature  of  such  a  charter  under 
the  California  constitution  has  been  to  demonstrate  that,  far  from 
accomplishing  anything  of  substantial  good  in  the  cause  of  estab- 
lishing a  satisfactory  relation  in  law  between  the  city  and  the 
state,  the  requirement  of  submission  to  the  legislature,  which 
among  home  rule  states  is  found  only  in  California,  has  been  a 
positive  evil. 

Judicial  Control  over  Home  Rule  Procedure 

.  It  should  be  mentioned  in  concluding  the  discussion  of  this 
phase  of  the  home  rule  provisions  of  the  California  constitution 
that,  following  the  rule  laid  down  in  People  v.  Gunn,1  the  California 
court  continued  to  assert  that  it  was  a  prerogative  of  the  judiciary 
to  determine  whether  the  constitutional  requirements  in  respect 
to  the  framing  and  adoption  of  freeholders'  charters  and  amend- 
ments have  been  satisfied  in  any  particular  instance.  Thus  in 
People  ex  rel.  Hoffman  v.  Hecht2  the  court  determined  the  ques- 
tion as  to  the  qualifications  of  certain  freeholders  who  were  elected 
to  draft  a  charter  in  San  Francisco.  Again  in  People  ex  rel.  Miller 
v.  Davie3  the  court  construed  the  meaning  of  the  term  ''special 
election"  at  which  the  constitution  permitted  charter  amendments 
to  be  submitted.  So  also  in  the  City  of  Santa  Rosa  v.  Bower4 
it  was  held  that  a  charter  approved  by  a  majority  of  those  voting 
on  the  proposition  but  not  by  a  majority  of  those  voting  at  the 
general  municipal  election  of  April,  1902,  when  the  charter  was 
submitted,  was  void  under  the  provisions  of  the  constitution  as 
they  stood  at  that  time,5  even  though  the  charter  was  subsequently 
duly  ratified  by  the  legislature. 

1  Supra,  208.  »  105  Cal.  621.     1895. 

»  114  Cal.  363.     1896.  *  142  Cal.  299.     1904. 

B  Amended  in  this  respect  in  November,  1902 ;  infra,  224. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         221 

In  1900  it  was  decided  in  the  important  case  of  Blanch ard  v. 
Hartwell1  that  the  power  to  frame  a  complete  charter  was  not 
under  the  then  existing  provisions  of  the  constitution  a  continuing 
power  but  was  exhausted  in  being  once  exercised.  This  proposi- 
tion was  sustained  upon  the  following  line  of  argument : 

Since  a  procedure  for  the  amendment  of  such  a  charter  is  expressly 
provided,  the  presumption  would  be  (independently  of  the  declaration 
that  all  the  provisions  of  the  constitution  are  mandatory  and  prohibitory 
unless  the  contrary  is  expressly  stated)  that  such  mode  is  exclusive. 
Under  such  a  constitution  this  seems  indisputable.  The  one  mode  of 
amendment  is  commanded,  and  all  others  are  prohibited. 

But  every  feature  of  the  prescribed  mode  indicates  that  it  is  exclusive. 
It  can  be  amended  only  once  in  two  years.  This  would  be  a  vain  restric- 
tion if,  nevertheless,  the  charter  can  be  amended  by  framing  a  new  charter 
(as  remarked  at  the  argument)  every  sixty  days.  Here  is  a  clear  and 
positive  constitutional  policy  calculated  to  insure  some  degree  of  perma- 
nency, and  to  prevent  frequent  changes.  Such  is  the  prescribed  policy. 
People  may  differ  as  to  its  wisdom.  It  certainly  is  the  law.  In  the  second 
place,  it  prescribes  a  different  notice  from  that  required  upon  the  adoption 
of  the  charter  in  the  first  instance,  and  provides  that  alternate  propositions 
may  be  submitted  for  the  choice  of  electors.  These  are  -both  important 
matters,  not  only  providing  for  greater  deliberation,  but  enabling  the  elec- 
tors to  decide  by  direct  vote  between  different  proposed  policies,  thus  bring- 
ing local  self-government  nearer  to  the  individual  voter.  No  one  should 
be  permitted  to  deprive  the  electors  of  this  privilege  by  compelling  them 
to  vote  upon  a  different  proposition,  to  wit,  whether  they  will  adopt  a 
new  scheme  as  a  whole  or  not.  I  regard  the  right  to  submit  specific 
amendments  as  a  matter  of  great  importance ;  but  whether  important  or 
not  such  is  the  constitutional  scheme.  In  the  third  place,  the  amend- 
ment must  be  approved  by  a  majority  of  three-fifths  of  the  qualified 
electors ; 2  a  charter  may  be  adopted  by  a  majority  vote  of  such  elec- 
tors. This  is  also  a  provision  favoring  permanence,  and  against  changes 
made  under  temporary  excitement.  What  a  fatuous  limitation  or  re- 
quirement this  would  be  if  the  policy  thus  clearly  indicated  could  be 
defeated  by  adopting  a  new  charter  once  in  sixty  days  by  a  mere  majority 
vote.3 

1  131  Cal.  263  (1900).     For  reference  to  this  case  by  the  Missouri  court,  see 
supra,  198. 

2  [This  was  altered  by  an  amendment  of  1902 ;  infra,  224.] 

3  [Here  followed  a  discussion  of  Reeves  v.  Anderson,  13  Wash.  17,  infra,  413  ff., 
and  an  attempt  to  distinguish  the  provisions  of  the  California  and  Washington 
constitutions  upon  this  point.l 


222  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

This  was  obviously  a  somewhat  rigid  interpretation  of  the  pro- 
vision of  the  constitution  in  question,  though  doubtless  quite  with- 
in its  strict  letter. 

In  the  case  of  Harrison  v.  Roberts,1  decided  four  years  after  the 
Blanchard  case,  question  was  raised  as  to  the  meaning  of  the 
provision  that  freeholders'  charters  might  be  "  amended  at  inter- 
vals of  not  less  than  two  years."  On  December  4,  1902  the 
people  of  San  Francisco  voted  in  favor  of  certain  charter  amend- 
ments which  were  subsequently  ratified  by  the  legislature.  The 
"legislative  authority"  of  the  city  —  the  board  of  supervisors  — 
proposed  certain  other  amendments  to  be  voted  on  at  the  general 
election  held  on  November  8,  1904 ;  and  the  question  as  to  whether 
this  would  be  amending  the  charter  in  less  than  two  years  was 
brought  before  the  court  by  an  application  for  mandamus  to  com- 
pel the  election  commissioners  and  the  registrar  of  voters  of  San 
Francisco  to  give  these  proposals  place  upon  the  ballot.  This 
application  was  refused,  the  view  being  taken  by  the  court  that 
the  period  of  two  years  which  must  elapse  between  the  enactment 
of  amendments  was  the  period  between  the  ratifying  elections. 
The  contention  was  rejected  that  the  two  years  must  fall  between 
the  dates  at  which  amendments  were  ratified  by  the  legislature. 
Such  construction,  said  the  court,  would  enable  the  people  of  a 
city  to  hold  as  many  elections  as  they  chose  upon  the  subject  of 
amendments  and  would  require  only  that  such  amendments  as 
were  adopted  by  the  people  should  wait  until  the  date  at  which 
the  legislature  might  formally  ratify  them ;  and  this  would  fail 
to  accomplish  one  apparent  object  of  the  provision,  which  was  to 
"protect  the  municipality  against  the  expense  and  disturbance 
of  frequent  elections."  Likewise  the  contention  was  rejected  that 
the  provision  necessitated  that  two  years  should  follow  the  date 
on  which  the  legislature  might  ratify  an  amendment  or  set  of 
amendments  before  any  steps  should  be  taken  toward  the  enact- 
ment of  further  amendments.  It  was  pointed  out  that  this  would 
normally  extend  the  period  in  question  to  four  years,  since  the 
regular  sessions  of  the  legislature  were  in  effect  limited  to  sixty 

1  145  Cal.  173.     1904. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         223 

days  in  every  two  years,  and  since  the  constitution  required  that 
proposals  for  charter  amendments  should  be  published  sixty  days 
in  advance  of  the  date  of  submission  to  the  people.  The  court 
concluded  that  "the  real  essential  to  an  amendment  is,  after  all, 
the  ratification  by  the  people  at  an  election;"  and  the  rule  as- 
serted was  in  fact  premised  upon  this  view  —  a  view  which  was 
manifestly  in  accord  with  the  notion  that  the  ratifying  act  of  the 
legislature  was  not  an  act  of  law-making. 

Shortly  after  the  decision  of  the  Harrison  case  the  court  refused 
in  the  case  of  Lubliner  v.  Alpers  l  to  issue  a  mandamus  to  compel 
the  board  of  supervisors  of  San  Francisco  to  order  a  special  elec- 
tion for  the  submission  of  certain  charter  amendments  which  had, 
under  the  authority  of  a  constitutional  amendment  of  1902/2 
been  proposed  by  a  petition  of  voters.  The  board  of  supervisors 
was  held  to  be  "invested  with  full  discretion  to  order  a  special 
election,  or  if  they  deem  that  course  unadvisable,  to  wait  until  the 
next  general  election  to  submit  the  proposed  amendments  to  a 
vote  of  the  people."  3 

It  was  thus  that  the  California  courts  in  a  considerable  number 
of  cases  gave  judicial  interpretation  to  various  phases  of  the  pro- 
cedure prescribed  by  the  constitution  for  the  framing,  adopting, 
and  amending  of  freeholders'  charters.  The  number  of  such  cases 
that  arose,  as  well  as  the  number  of  amendments  that  resulted 
from  their  adjudication,  clearly  demonstrates  the  necessity  of 
wording  a  constitutional  provision  upon  this  subject  with  the 
utmost  care  and  precision. 

Constitutional  Amendments  of  1887,  1892,  1902,  1906,  1911,  and 
1914  in  Respect  to  Home  Rule  Procedure 

As  a  matter  of  fact  section  8  of  article  XI  of  the  California 
constitution  as  set  forth  above  in  its  original  form4  has  been 
amended  on  six  different  occasions  since  its  adoption  in  1879. 

1  145  Cal.  291.     1904.  2  Infra,  224. 

3  See  also  Apple  v.  Zemansky,  166  Cal.  83  (1913),  involving  an  interpretation 
of  the  constitution  in  respect  to  the  matter  of  the  submission  of  alternative  amend- 
ments. *  Supra,  202,  203. 


224     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  was  rewritten  in  1887  before  any  city  had  adopted  a  freeholders' 
charter.  At  this  time  the  most  important  change  that  was  made 
was  that  already  referred  to  —  the  extension  of  the  charter-mak- 
ing power  to  cities  of  more  than  10,000  (instead  of  100,000)  in- 
habitants. By  amendment  in  1892  the  following  alterations  were 
made :  (1)  the  power  was  extended  to  cities  of  more  than  3500 
inhabitants ;  (2)  express  authority  was  given  for  the  ratification 
or  rejection  of  charters  or  amendments  by  "  concurrent  resolu- 
tion "  of  the  legislature  ;  (3)  charters  were  declared  to  supersede 
"all  laws  inconsistent"  therewith  instead  of  merely  "all  special 
laws";  and  (4)  the  publication  of  proposed  amendments  was 
regulated  more  specifically. 

In  1902  the  requirement  for  the  adoption  of  a  charter  was  changed 
from  a  majority  of  those  voting  at  an  election  to  a  majority  of 
those  voting  on  the  proposition,  and  the  requirement  for  the 
adoption  of  an  amendment  from  a  three-fifths  majority  of  those 
voting  at  an  election  to  a  majority  of  those  voting  on  the  amend- 
ment.1 The  significance  of  these  changes,  especially  where  a  city 
desired  to  vote  upon  a  charter  or  amendment  at  a  general  elec- 
tion, is  too  obvious  to  necessitate  comment.  It  was  provided  at 
the  same  time,  also,  that  in  addition  to  the  method  of  initiation 
by  the  "legislative  body  of  the  city,"  an  amendment  or  amend- 
ments might  be  initiated  at  any  time  by  a  petition  of  fifteen  per 
centum  of  the  voters,  which  amendments  should  thereupon  be 
submitted  to  the  voters  for  approval  or  rejection.2 

In  1906  the  provision  was  again  amended  by  the  insertion  of  a 
clause  which  made  it  clear  that  a  city  operating  under  a  freeholders' 
charter  might  frame  and  adopt  another  such  charter  by  precisely 
the  same  procedure  by  which  it  secured  its  existing  charter  — 
this  change  being  made  to  overcome  the  effect  of  the  court's  deci- 
sion in  the  above-mentioned  case  of  Blanchard  v.  Hartwell.3  At 
the  same  time  the  clause  which  required  that  the  charter  should 

1  Supra,  220. 

»  In  Blanchard  v.  Hartwell,  supra,  221,  it  was  clearly  indicated  that  not  even  the 
legislature  was  competent  to  vest  the  power  of  initiating  amendments  elsewhere 
than  in  the  legislative  body  of  the  city. 

3  Ibid. 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         225 

be  "  consistent  with  and  subject  to  the  constitution  and  laws  of 
this  state"  was  altered  to  require  merely  that  the  charter  should 
be  "  consistent  with  and  subject  to  the  constitution."  In  the  v 
light,  however,  of  certain  other  unaltered  provisions  of  the  article 
applying  to  cities  it  is  not  apparent,  as  we  shall  see,  that  this 
latter  change  was  of  any  material  consequence. 

In  1911  the  section  in  question  was  subjected  to  the  following 
elaborate  series  of  minor  alterations : 

(1)  Permitting  any  city  to  establish  its  population  as  exceed- 
ing 3500  by  taking  its  own  census ;  (2)  requiring  a  two-thirds  vote 
of  the  local  legislative  body  or  a  petition  of  fifteen  per  centum  of  the 
voters  to  initiate  proceedings  for  electing  a  board  of  freeholders, 
and  requiring  the  city  clerk  to  verify  petitions ;  (3)  making  candi- 
dates for  freeholders  subject  to  nomination  only  by  petition; 
(4)  extending  the  time  for  drafting  the  charter  from  90  to  120 
days ;  (5)  reducing  the  period  of  publication  of  the  charter  from 
20  to  10  days ;  (6)  requiring  the  charter  to  be  submitted  to  vote 
at  a  special  or  municipal  election  held  between  20  and  40  days 
after  publication;  (7)  allowing  charter  amendment  elections  to 
be  held  before  the  expiration  of  two  full  calendar  years ;  (8)  per- 
mitting charters  or  amendments  to  be  submitted  at  special  ses- 
sions of  the  legislature ;  (9)  requiring  petitions  for  charter  amend- 
ments to  be  verified  by  the  city  clerk  and  submitted  between  20 
and. 40  days  after  publication;  (10)  allowing  special  charter  elec- 
tions to  be  called  by  ordinance,  which  must  establish  election 
precincts,  fix  polling  places,  and  name  election  officers;  (11)  al- 
lowing the  establishment  of  the  borough  form  of  city  government. 

In  1914  this  much  remodeled  section  of  the  constitution  was 
again  subjected  to  repair,  the  most  important  alterations  being : 
(1)  that  the  legislative  body  of  the  city  was  given  power  to  extend 
the  time  given  the  freeholders  to  prepare  a  charter  from  120 
days  to  180  days;  (2)  that  only  a  single  publication  in  a  news- 
paper should  be  necessary,  provision  being  made,  after  the  Oregon 
system,  for  the  distribution  of  pamphlets  to  the  electors ;  (3)  that 
all  petitions  for  the  submission  of  any  amendments  to  the  charter 
must  be  filed  with  the  legislative  body  of  the  municipality  not 


226     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

less  than  60  days  prior  to  the  general  election  next  preceding  a 
general  session  of  the  legislature ;  (4)  that  elections  for  the  adop- 
tion of  charter  amendments  were  limited  to  a  period  commencing 
six  months  next  preceding  a  regular  session  of  the  legislature  and 
ending  with  the  final  adjournment  of  that  session ;  and  (5)  that  no 
amendment  could  be  submitted  to  the  legislature  except  at  a  regu- 
lar session. 

Under  this  amendment  of  1914  the  provision  of  the  California 
constitution  is  immeasurably  and,  it  would  seem,  wholly  unneces- 
sarily detailed  in  character.1 

1  The  provision  reads : 

"Any  city  or  city  and  county  containing  a  population  of  more  than  three  thou- 
sand five  hundred  inhabitants,  as  ascertained  by  the  last  preceding  census  taken 
under  the  authority  of  the  Congress  of  the  United  States  or  of  the  legislature  of 
California,  may  form  a  charter  for  its  own  government,  consistent  with  and  sub- 
ject to  this  constitution ;  and  any  city,  or  city  and  county  having  adopted  a  charter 
may  adopt  a  new  one.  Any  such  charter  shall  be  framed  by  a  board  of  fifteen  free- 
holders chosen  by  the  electors  of  such  city  at  any  general  or  special  election ;  but 
no  person  shall  be  eligible  as  a  candidate  for  such  board  unless  he  shall  have  been, 
for  the  five  years  next  preceding,  an  elector  of  said  city.  An  election  for  choosing 
freeholders  may  be  called  by  a  two-thirds  vote  of  the  legislative  body  of  such  city, 
and,  on  presentation  of  a  petition  signed  by  not  less  than  fifteen  per  cent  of  the 
registered  electors  of  such  city,  the  legislative  body  shall  call  such  election  at  any 
time  not  less  than  thirty  nor  more  than  sixty  days  from  the  date  of  the  filing  of  the 
petition.  Any  such  petition  shall  be  verified  by  the  authority  having  charge  of  the 
registration  records  of  such  city  or  city  and  county  and  the  expenses  of  such  verifica- 
tion shall  be  provided  by  the  legislative  body  thereof.  Candidates  for  the  office  of 
freeholders  shall  be  nominated  either  in  such  manner  as  may  be  provided  for  the 
nomination  of  officers  of  the  municipal  government  or  by  petition,  substantially 
in  the  same  manner  as  may  be  provided  by  general  laws  for  the  nomination  by  peti- 
tion of  electors  of  candidates  for  public  offices  to  be  voted  for  at  general  elections. 
The  board  of  freeholders  shall,  within  one  hundred  and  twenty  days  after  the  result 
of  the  election  is  declared,  prepare  and  propose  a  charter  for  the  government  of 
such  city ;  but  the  said  period  of  one  hundred  and  twenty  days  may  with  the  con- 
sent of  the  legislative  body  of  such  city  be  extended  by  such  board  not  exceeding 
a  total  of  sixty  days.  The  charter  so  prepared  shall  be  signed  by  a  majority  of 
the  board  of  freeholders  and  filed  in  the  office  of  the  clerk  of  the  legislative  body 
of  said  city.  The  legislative  body  of  said  city  shall  within  fifteen  days  after  such 
filing  cause  such  charter  to  be  published  once  in  the  official  paper  of  said  city 
(or  in  case  there  be  no  such  paper,  in  a  paper  of  general  circulation) ;  and  shall 
cause  copies  of  such  charter  to  be  printed  in  convenient  pamphlet  form,  and  shall, 
until  the  date  fixed  for  the  election  upon  such  charter,  advertise  in  one  or  more 
papers  of  general  circulation  published  in  said  city  a  notice  that  such  copies  may  be 
had  upon  application  therefor.  Such  charter  shall  be  submitted  to  the  electors 


HOME  RULE  PROCEDURE  IN  CALIFORNIA         227 

of  such  city  at  a  date  to  be  fixed  by  the  board  of  freeholders,  before  such  filing  and 
designated  on  such  charter,  either  at  a  special  election  held  not  less  than  sixty  daya 
from  the  completion  of  the  publication  of  such  charter  as  above  provided,  or  at  the 
general  election  next  following  the  expiration  of  said  sixty  days.  If  a  majority 
of  the  qualified  voters  voting  thereon  at  such  general  or  special  election  shall  vote 
in  favor  of  such  proposed  charter,  it  shall  be  deemed  to  be  ratified,  and  shall  be 
submitted  to  the  legislature,  if  then  in  session,  or  at  the  next  regular  or  special 
session  of  the  legislature.  The  legislature  shall  by  concurrent  resolution  approve 
or  reject  such  charter  as  a  whole,  without  power  of  alteration  or  amendment,  and  if 
approved  by  a  majority  of  the  members  elected  to  each  house  it  shall  become  the 
organic  law  of  such  city  or  city  and  county,  and  supersede  any  existing  charter  and 
all  laws  inconsistent  therewith.  One  copy  of  the  charter  so  ratified  and  approved 
shall  be  filed  with  the  secretary  of  state,  one  with  the  recorder  of  the  county  in 
which  such  city  is  located,  and  one  in  the  archives  of  the  city ;  and  thereafter  the 
courts  shall  take  judicial  notice  of  the  provisions  of  such  charter.  The  charter 
of  any  city  or  city  and  county  may  be  amended  by  proposal  therefor  submitted  by 
the  legislative  body  of  the  city  on  its  own  motion  or  on  petition  signed  by  fifteen 
per  cent  of  the  registered  electors,  or  both.  Such  proposals  shall  be  submitted  to 
the  electors  only  during  the  six  months  next  preceding  a  regular  session  of  the  legis- 
lature or  thereafter  and  before  the  final  adjournment  of  that  session  and  at  either  a 
special  election  called  for  that  purpose  or  at  any  general  or  special  election.  Peti- 
tions for  the  submission  of  any  amendment  shall  be  filed  with  the  legislative  body  of 
the  city  or  city  and  county  not  less  than  sixty  days  prior  to  the  general  election  next 
preceding  a  regular  session  of  the  legislature.  The  signatures  on  such  petitions  shall 
be  verified  by  the  authority  having  charge  of  the  registration  records  of  such  city 
or  city  and  county,  and  the  expenses  of  such  verification  shall  be  provided  by  the 
legislative  body  thereof.  If  such  petitions  have  a  sufficient  number  of  signatures 
the  legislative  body  of  the  city  or  city  and  county  shall  so  submit  the  amendment 
or  amendments  so  proposed  to  the  electors.  Amendments  proposed  by  the  legis- 
lative body  and  amendments  proposed  by  petition  of  the  electors  may  be  sub- 
mitted at  the  same  election.  The  amendments  so  submitted  shall  be  advertised 
in  the  same  manner  as  herein  provided  for  the  advertisement  of  a  proposed  charter, 
and  the  election  thereon  held  at  a  date  to  be  fixed  by  the  legislative  body  of  such 
city,  not  less  than  forty  and  not  more  than  sixty  days  after  the  completion  of  the 
advertising  in  the  official  paper.  If  a  majority  of  the  qualified  voters  voting  on  any 
such  amendment  vote  in  favor  thereof  it  shall  be  deemed  ratified,  and  shall  be  sub- 
mitted to  the  legislature  at  the  regular  session  next  following  such  election ;  and 
approved  or  rejected  without  power  of  alteration  in  the  same  manner  as  herein 
provided  for  the  approval  or  rejection  of  a  charter!  In  submitting  any  such  charter 
or  amendment  separate  propositions,  whether  alternative  or  conflicting,  or  one 
included  within  the  other,  may  be  submitted  at  the  same  time  to  be  voted  on  by 
the  electors  separately,  and,  as  between  those  so  related,  if  more  than  one  receive 
a  majority  of  the  votes,  the  proposition  receiving  the  larger  number  of  votes  shall 
•control  as  to  all  matters  in  conflict.  It  shall  be  competent  in  any  charter  framed 
under  the  authority  of  this  section  to  provide  that  the  municipality  governed  there- 
under may  make  and  enforce  all  laws  and  regulations  in  respect  to  municipal  affairs, 
subject  only  to  the  restrictions  and  limitations  provided  in  their  several  charters 
and  in  respect  to  other  matters  they  shall  be  subject  to  general  laws.  It  shall  be 


228     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

competent  in  any  charter  to  provide  for  the  division  of  the  city  or  city  and  county 
governed  thereby  into  boroughs  or  districts,  and  to  provide  that  each  such  borough 
or  district  may  exercise  such  general  or  special  municipal  powers,  and  be  admin- 
istered in  such  manner,  as  may  be  provided  for  each  such  borough  or  district  in  the 
charter  of  the  city  or  city  and  county. 

"  The  percentages  of  the  registered  electors  herein  required  for  the  election  of 
freeholders  or  the  submission  of  amendments  to  charters  shall  be  calculated  upon 
the  total  vote  cast  in  the  city  or  city  and  county  at  the  last  preceding  general  state 
election ;  and  the  qualified  electors  shall  be  those  whose  names  appear  upon  the 
registration  records  of  the  same  or  preceding  year.  The  election  laws  of  such  city 
or  city  and  county  shall,  so  far  as  applicable,  govern  all  elections  held  under  the 
authority  of  this  section." 


CHAPTER  VIII 

HOME  RULE  IN  CALIFORNIA  —  CONFLICT  BETWEEN 

STATE  LAWS  AND  CHARTER  PROVISIONS 

BEFORE   1896 

IT  has  been  noted  that  the  right  to  frame  freeholders'  charters 
was  by  an  amendment  of  1892  extended  to  practically  all  the 
cities  of  California  —  to  any  city  having  a  population  of  more  than 
three  thousand  five  hundred  inhabitants.  Almost  immediately 
certain  smaller  cities  became  active  in  the  matter  of  framing 
charters.  In  1893  the  legislature  approved  home  rule  charters 
for  the  small  cities  of  Grass  Valley  and  Napa,1  as  well  as  for  the 
more  sizable  city  of  Sacramento.2  In  the  legislative  session  of 
1895  charters  were  ratified  for  Berkeley  and  Eureka  3  and  certain 
amendments  to  the  Oakland  charter  of  1889  were  also  sanctioned.4 
San  Jose  was  the  only  city  that  presented  a  charter  at  the  session 
of  1897,  which  charter  was  promptly  approved.5  From  this  time 
on  the  number  of  charters  and  charter  amendments  that  were 
offered  for  legislative  ratification  steadily  increased  from  session 
to  session  of  the  legislature. 

After  repeated  attempts  to  frame  a  charter  acceptable  to  her 
voters,6  San  Francisco  at  length  succeeded  at  an  election  held  in 
May,  1898.  This  charter  was  ratified  by  the  legislature  the  next 
year 7  and  went  into  effect  on  January  1,  1900.  At  the  same  ses- 

1  Stats,  of  Cal.,  1893,  pp.  628,  641.  2  Ibid.,  p.  545. 

3  Stats,  of  Cal.,  1895,  pp.  409,  355.  4  Ibid.,  p.  353. 

6  Stats,  of  Cal.,  1897,  p.  592. 

8  Proposed  charters  were  defeated  at  the  polls  of  San  Francisco  in  September, 
1880 ;  March,  1883 ;  April,  1887 ;  and  November,  1896.  For  a  brief  discussion 
of  these  attempts  at  charter-making,  see  Oberholtzer,  The  Referendum  in  America, 
ed.  of  1911,  pp.  349-352. 

7  Stats,  of  Cal.,  1899,  p.  241. 

229 


230  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

sion  of  the  legislature  charters  were  approved  for  the  little  cities 
of  Santa  Barbara  and  Vallejo.1  At  the  present  time,2  out  of  the 
fifty-two  cities  of  California3  having  a  population  of  more  than 
thirty-five  hundred  inhabitants,  thirty-three  are  operating  under 
charters  of  their  own  making.4  The  city  of  Redlands,  with  a 
population  of  slightly  over  ten  thousand  inhabitants,  is  the  largest 
city  of  the  state  operating  under  a  legislative  charter. 

Aside  from  the  problem  considered  in  the  previous  chapter, 
which  arose  out  of  the  judicial  construction  of  the  nature  of  a 

1  Stats,  of  Cal.,  1899,  pp.  448,  370. 

1  Down  to  1915  but  not  including  the  charters  that  may  have  been  ratified  at  the 
legislative  session  of  1915.  3  According  to  the  federal  census  of  1910. 

4  The  following  is  the  list  of  home  rule  cities  with  the  dates  of  their  charters  and 
amendments  as  ratified  by  the  legislature ;  the  page  references  are  to  the  Statutes 
of  corresponding  years ;  charters  or  amendments  which  were  defeated  at  the  polls 
are  not  included : 

Los  Angeles,  1889  (p.  455),  amended  1903  (p.  555),  1905  (p.  980),  1907  (p.  1160), 
1909  (p.  1289),  1911  (p.  2051),  1913  (p.  1629) ;  Oakland,  1889  (p.  513),  amended 
1895  (p.  353),  1907  (p.  1349),  1909  (p.  1320),  second  charter,  1911  (p.  1551)  ;  San 
Diego,  1889  (p.  643),  amended  1901  (p.  879),  1905  (p.  901),  1909  (p.  1137),  1911 
(p.  1856),  1913  (p.  1663) ;  Stockton,  1889  (p.  577),  amended  1905  (p.  832) ;  Sacra- 
mento, 1893  (p.  545),  amended  1905  (p.  924),  1911  (p.  1790) ;  Grass  Valley,  1893 
(p.  628),  amended  1909  (p.  1282)  ;  Napa,  1893  (p.  641),  amended  1903  (p.  689) ; 
Berkeley,  1895  (p.  409),  amended  1905  (p.  829),  second  charter,  1909  (p.  1208), 
amended  1913  (p.  1502);  Eureka,  1895  (p.  355),  amended  1907  (p.  1172),  1911 
(p.  2036),  1913  (p.  1544);  San  Jose,  1897  (p.  592),  amended  1901  (p.  952),  1903 
(p.  684),  1907  (p.  1272) ;  San  Francisco,  1899  (p.  241),  amended  1903  (p.  583),  1907 
(ex.  sess.,  pp.  10,  29),  1911  (pp.  1469,  1661),  1913  (pp.  1473,  1602)  ;  Santa  Barbara, 
1899  (p.  448),  amended  1905  (p.  929),  1909  (p.  1149),  1911  (p.  1478) ;  Vallejo,  1899 
(p.  370),  amended  1907  (p.  1245),  second  charter,  1911  (p.  1958),  amended  1913  (p. 
1693) ;  Fresno,  1901  (p.  832),  amended  1905  (p.  1026) ;  Pasadena,  1901  (p.  884), 
amended  1905  (p.  1011),  1909  (p.  1198),  1913  (p.  1457) ;  Salinas  City,  1903  (p.  599), 
amended  1911  (p.  1739)  ;  Santa  Rosa,  1903  (p.  702),  second  charter,  1905  (p.  867) ; 
WatsonvUle,  1903  (p.  647) ;  San  Bernardino,  1905  (p.  940),  amended  1909  (p.  1166), 
1913  (p.  1716) ;  Alameda,  1907  (p.  1051),  amended  1913  (pp.  1454,  1720) ;  Long 
Beach,  1907  (p.  1176),  amended  1913  (p.  1513) ;  Riverside,  1907  (p.  1277) ;  Santa 
Cruz,  1907  (p.  1105),  second  charter,  1911  (p.  1861) ;  Santa  Monica,  1907  (p.  1007) ; 
Palo  Alto,  1909  (p.  1175),  amended  1911  (p.  2040) ;  Richmond,  1909  (p.  1262), 
amended  1913  (p.  1690) ;  Modesto,  1911  (p.  1493) ;  Monterey,  1911  (p.  1742) ; 
Pelaluma,  1911  (p.  1799);  Pomona,  1911  (p.  1913);  San  Luis  Obispo,  1911  (p. 
1698),  amended  1913  (p.  1667) ;  San  Raphael,  1913  (p.  1549). 

In  1913  home  rule  charters  were  also  ratified  for  Los  Angeles  County  (p.  1484) 
and  San  Bernardino  County  (p.  1652),  this  power  having  been  conferred  upon 
counties  by  a  constitutional  amendment  adopted  in  November,  1912. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      231 

freeholders'  charter,  the  real  difficulties  arising  under  the  provi- 
sions of  the  California  constitution  of  1879  relating  to  cities  may 
be  considered  as  in  the  case  of  Missouri,  under  two  heads :  first, 
what  relation  of  precedence  was  established  between  general  laws 
of  the  state  and  provisions  of  freeholders'  charters  —  that  is,  what 
was  the  character  of  those  " general  laws"  which  charter  provisions 
were  made  ''subject  to  and  controlled  by";  and  second,  what 
)wers  might  a  city  exercise  under  the  grant  of  the  right  to  frame 
a  charter  "for  its  own  government"  wholly  in  the  absence  of  any 
consideration  of  conflict  between  statutory  and  charter  provisions. 

The  Contradictions  of  Section  Six 

It  is  to  be  noted  that  section  six,  as  above  quoted,  required 
(1)  that  the  legislature  should  "by  general  laws"  provide  for  the 
government  of  cities  and  that  cities  should  "become  organized 
under  such  laws  whenever  a  majority  of  the  electors  voting  at  a 
general  election"  should  so  determine;  and  (2)  that  all  cities  of  v< 
the  state,  no  matter  when  or  how  organized  should  "be  subject 
to  and  controlled  by  general  laws." 

On  the  very  face  of  things  here  was  a  contradiction  of  terms 
within  a  dozen  lines  of  the  constitution,  unless,  forsooth,  "general 
laws"  should  be  defined  to  have  one  meaning  as  used  in  the  first 
sentence  of  the  section  and  to  have  another  meaning  as  used  in 
the  concluding  sentence.  For  how  could  a  city,  no  matter  when 
or  how  organized,  be  at  all  times  "subject  to  and  controlled  by 
general  laws"  and  at  the  same  time  enjoy  the  right  to  determine 
for  itself  at  a  general  election  whether  it  would  or  would  not 
organize  under  "general  laws"? 

Moreover,  it  is  highly  important  to  observe  that  the  last  sen- 
tence of  this  section  made  no  distinction  whatever  between  cities 
organized  under  freeholders'  charters  and  cities  organized  under 
existing  special  legislative  charters  or  under  the  general  charter 
laws  which  the  legislature  was  required  by  the  new  constitution 
to  enact.  It  referred  specifically  to  "cities  and  towns  heretofore 
or  hereafter  organized,  and  all  charters  thereof  framed  or  adopted 


232     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

by  authority  of  this  constitution."  This  included,  of  course,  every 
city  of  the  state  (those  which  should  organize  under  freeholders' 
charters  as  well  as  others  under  special  or  general  charter  laws), 
and  it  was  ordained  that  every  such  city  should  be  "subject  to  and 
controlled  by  general  laws."  What  did  the  framers  of  this  pro- 
vision mean  by  " general  laws"  as  this  term  was  so  curiously  and 
conflictingly  employed? 

It  has  already  been  remarked  that  the  first  freeholders'  charter 
in  California  was  that  of  Los  Angeles  which  went  into  effect  in 
1889,  ten  years  after  the  adoption  of  the  constitution.  Mean- 
time the  courts  had  been  called  upon  to  construe  the  meaning  of 
the  term  "general  laws"  in  a  number  of  cases.  And  while  these 
cases  did  not  involve  the  question  of  freeholders'  charters  as  such, 
it  was  manifest  that  the  doctrines  which  they  laid  down  would 
be  equally  applicable  to  such  charters,  since  the  section  of  the 
constitution  under  consideration  made  no  exception  in  requiring 
such  charters  to  be  subject  to  and  controlled  by  general  laws. 
These  cases  were,  therefore,  of  quite  as  much  importance  in  deter- 
mining the  conditions  of  home  rule  that  were  established  by  the 
constitution  as  if  they  had  arisen  in  some  controversy  involving  a 
freeholders'  charter. 


The  Doctrine  that  "General  Laws"  dealing  with  Specific  Charter  Sub- 
jects control  Charter  Provisions  without  Local  Acceptance,  Regard- 
less of  whether  Such  Laws  relate  to  State  or  Municipal  Affairs 

At  the  time  of  the  adoption  of  the  constitution  of  1879  the 
"  city  and  county  "  of  San  Francisco  was  a  single  municipal  cor- 
poration operating  under  a  charter  known  as  the  "  consolidation 
act"  of  1856.  In  1880  the  legislature  attempted  to  give  this  cor- 
poration a  new  government  by  enacting  what  was  known  at  the 
time  as  the  "McClure  Charter."  This  charter  was  general  in 
form  but  applied  only  to  "  merged  cities  and  counties  having  more 
than  one  hundred  thousand  population"  and  therefore  only  to 
San  Francisco.  It  was  held  in  the  case  of  Desmond  v.  Dunn  1 

1  55  Cal.  242.     1880. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     233 

that  this  law  was  not  a  "general  law"  within  the  meaning  of  the 
constitution.  It  is  somewhat  difficult,  however,  to  fathom  the 
reasoning  of  the  court  upon  this  point.  It  was  declared  that  if 
this  charter  was  a  " general  law"  it  could  have  no  effect  until  it 
should  be  adopted  by  the  voters ;  but  in  making  this  declaration 
the  court  ignored  the  requirement  of  the  constitution  to  the  effect 
that  cities  heretofore  organized  should  "be  subject  to  and  con- 
trolled by  general  laws."  The  court  also  declared  that  a  merged 
city  and  county  government  might  "not  be  incorporated  under 
general  laws  providing  for  the  incorporation  of  consolidated 
city  and  county  governments,  for  municipal  purposes,  but  under 
general  laws  providing  for  the  incorporation  and  organization  of 
all  corporations  for  municipal  purposes."  In  other  words,  al- 
though the  constitution  recognized  the  right  of  the  legislature  to 
classify  municipal  corporations,  it  was  at  this  early  date  ap- 
parently the  view  of  the  court  that  the  legislature  could  not  enact 
"general  laws"  for  the  several  classes  at  different  times,  no  very 
clear  reasons  being  assigned  in  support  of  this  view.  Finally  it 
was  concluded  that  this  was  a  class  of  municipal  corporations  which 
the  legislature  had  no  constitutional  authority  to  create.  This 
may  or  may  not  have  been  an  arbitrary  determination.  Cer- 
tainly it  was  no  more  arbitrary  than  the  declarations  of  invalidity 
that  have  been  made  by  the  courts  of  certain  other  states  in 
the  matter  of  legislative  classification  of  municipal  corporations. 
On  the  whole  it  cannot  be  said  that  the  California  court  made 
very  substantial  progress  in  this  first  case  toward  elucidating  the 
highly  uncertain  meaning  of  the  constitutional  provision  under 
review. 

In  1881  the  legislature  enacted  a  law  known  as  the  Hartson  Act 
which  provided  that  all  "county,  city  and  county,  and  township" 
officers  in  the  state  should  be  elected  in  November  of  the  even- 
numbered  years  beginning  in  1882.  Under  the  charter  of  San 
Francisco  "city  and  county"  officers  were  elected  in  the  odd- 
numbered  years,  the  next  election  being  scheduled  to  take  place 
in  September,  1881.  The  attempt  was  first  made  to  enjoin  the 
election  commissioners  from  holding  this  election;  and  although 


234     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  court,  by  a  judgment  concurred  in  by  five  out  of  its  seven 
members,  refused  in  the  case  of  Wood  v.  Election  Commissioners  1 
to  grant  this  injunction,  the  judges  were  unable  to  agree  on  the 
ground  upon  which  the  injunction  was  refused. 

The  real  constitutional  interpretation  of  the  applicableness  of 
the  Hartson  law  to  San  Francisco  arose  a  year  later  in  the  case  of 
Staude  v.  Election  Commissioners,2  where  the  contention  was 
made  that  this  act,  being  a  " general  law"  which  the  voters  of  San 
Francisco  had  not  accepted,  was  not  applicable  to  the  corporation 
of  the  city  and  the  county  and  did  not  repeal  the  provisions  of  its 
charter  as  contained  in  the  consolidation  act  of  1856  as  amended. 
In  refuting  this  contention  the  court  referred  to  the  fact  that  while 
section  six  declared  that  cities  should  organize  under  general  laws 
only  upon  a  vote  of  the  people,  it  also  said  that  all  cities  should  be 
subject  to  and  controlled  by  general  laws ;  and  a  distinction  was 
drawn  in  the  opinion  between  the  " general  laws"  applicable  only 
upon  a  referendum  and  the  " general  laws"  which  all  the  cities  of 
the  state  were  without  acceptance  subject  to  and  controlled  by. 
The  opinion  recited  in  part: 

Recognizing  the  fact  that  the  city  and  county  of  San  Francisco  remains 
a  subdivision  of  the  state,  the  constitution  has  said,  in  effect,  that  it,  as. 
well  as  all  other  cities  and  towns  heretofore  or  hereafter  organized,  shall 
be  subject  to  and  controlled  by  such  general  laws  as  the  legislature  shall 
enact  other  than  those  for  the  incorporation,  organization,  and  classification, 
in  proportion  to  population,  of  cities  and  towns.3  We  do  not  perceive  the 
danger  suggested  by  counsel  for  respondents,  of  the  Consolidation  Act 
being  "eaten  away"  by  such  legislation.  It  cannot,  as  already  observed, 
be  supplanted  by  a  general  act  of  incorporation  without  the  will  of  the 
people  expressed  at  the  polls,  nor  can  it  be  affected  by  special  legislation ; 
and  it  is  not  probable  that  such  general  laws  as  the  legislature  may  enact 
in  conflict  with  its  provisions  will  seriously  affect  it.  But  be  that  as  it  may, 
the  constitution  has  expressly  declared  that  it  shall  be  subject  to  and  con- 
trolled by  such  laws.  Such  a  law,  in  our  opinion,  is  the  Hartson  Act, 
which  simply  provides  for  a  uniform  system  of  elections  for  the  elective 
county,  city  and  county,  and  township  officers  in  the  state  in  the  even- 
numbered  years,  commencing  in  the  year  1882. 

1  58  Cal.  561.     1881.  »  61  Cal.  313.     1882. 

1  [The  italics  are  interpolated.] 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     235 

Here  then  was  a  fairly  clear  announcement  of  the  attitude 
which  the  courts  would  assume  upon  the  subject  of  the  relation 
between  general  laws  and  charter  provisions  as  established  by  the 
nebulous  phraseology  of  the  constitution.  The  term  "general 
laws"  as  used  in  the  first  sentence  of  section  six  was  held  —  as  of 
necessity  it  had  to  be  held  if  the  section  as  a  whole  was  to  be  given 
any  intelligibility  —  to  mean  something  different  from  the  same 
term  as  used  in  the  concluding  sentence.  The  " general  laws" 
which  the  city  was  to  " become  organized  under"  only  upon  a  vote 
of  the  people  were  those  that  related  to  the  "  incorporation, 
organization,  and  classification"  of  cities.  The  " general  laws" 
which  the  city  was  to  be  " subject  to  and  controlled  by"  without 
local  sanction  were  those  which  did  not  relate  to  such  matters. 
The  distinction  was  easily  put  into  words;  but  the  application 
of  this  distinction  was  obviously  fraught  with  great  difficulty. 
Take,  for  example,  the  statute  that  was  here  before  the  court. 
It  regulated  the  time  of  the  election  of  the  corporate  officers  of 
the  city  and  county  of  San  Francisco.  This  is  a  matter  which  is 
almost  invariably  regulated  by  the  law  that  provides  for  the 
"incorporation"  and  "organization"  of  a  municipality.  In 
this  respect  the  charter  of  San  Francisco  was  no  exception.  The 
law  which  in  this  case  was  sustained  clearly  operated  to  amend 
the  charter  of  the  city  and  county.  Indeed  in  last  analysis  the 
opinion  of  the  court  seemed  to  be  that  while  the  legislature  could 
not  put  into  effect  without  the  sanction  of  the  local  electorate  a 
general  law  providing  a  comprehensive  scheme  of  government,  a 
complete  charter,  for  cities  or  classes  of  cities,  it  could  nevertheless 
put  into  effect  a  general  law  dealing  with  some  specific  phase  of 
the  local  government. 

Several  points  in  connection  with  this  leading  case  in  Cali- 
fornia deserve  to  be  noted  in  passing.  In  the  first  place,  although 
the  situation  of  San  Francisco  was  peculiar  in  that  it  was  a  single 
corporation  with  both  city  and  county  officers,  the  constitution 
expressly  declared  that  the  provisions  applicable  to  cities  "so  far 
as  not  inconsistent  or  prohibited  to  cities"  should  be  applicable 
to  consolidated  city  and  county  governments.  The  provision  re- 


236     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

quiring  that  cities  should  "be  subject  to  and  controlled  by  general 
laws"  was  therefore  obviously  applicable  to  the  "merged"  govern- 
ment of  San  Francisco.  The  law  under  review  in  the  case  applied 
not  only  to  county  and  township  officers  but  also  specifically  to 
"  city  and  county"  officers.  The  question  presents  itself  whether, 
under  the  doctrine  of  Desmond  v.  Dunn,1  this  was  not  creating  a 
class  unwarranted  by  the  constitution.  This  question  was  not 
discussed  by  the  court.  The  point  of  importance  is,  however, 
that  if  this  law  regulating  the  time  of  election  of  the  officers  of 
city  and  county  governments  was  valid,  certainly  also  a  "general 
law"  regulating  the  time  of  election  of  city  officers  and  thus  amend- 
ing the  provisions  of  municipal  charters  throughout  the  state  would 
have  been  valid. 

In  the  second  place,  the  opinion  did  not  turn  upon  the  view  that 
the  matter  of  elections  is  a  matter  of  state  as  distinguished  from 
local  concern.2  In  other  words  the  court  did  not  say  that  the 
general  laws  which  cities  were  to  be  "subject  to  and  controlled 
by"  were  those  laws  that  related  to  matters  of  state  concern,  and 
that  the  matter  of  elections  fell  within  this  category.  Under  the 
broad  doctrine  of  the  case  a  matter  of  the  most  "local"  concern 
would  be  subject  to  and  controlled  by  a  general  law  upon  the  same 
subject,  for  "general"  was  not  held  to  be  used  in  contrast  with 
"local."  A  general  laV  was  a  law  of  general  application. 

In  the  third  place,  as  has  already  been  mentioned,  this  law  would 
have  applied  to  San  Francisco  with  precisely  the  same  force  and 
effect  if  the  city  and  county  had  at  the  time  been  operating  under 
a  freeholders'  charter;  for  the  constitution  made  no  distinction 
whatever  between  freeholders'  and  legislative  charters  in  the 
matter  of  their  being  "subject  to  and  controlled  by  general  laws." 
As  presaging  the  authority  of  the  legislature  to  alter  and  amend 
freeholders'  charters  by  the  enactment  of  general  laws,  this  case 
was  therefore  of  profound  signification. 

In  the  case  of  Thomason  v.  Ruggles  3  it  was  held  by  a  majority 
of  the  court  (under  circumstances  of  legislation  so  complicated 

1  Supra,  232.  *  Supra,  141  ff. ;   infra,  259  ff. 

•  69  Cal.  465  (1886) ;   infra,  276. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     237 

that  they  need  not  be  detailed,  the  court  itself  being  unable  to 
reach  any  majority  agreement  upon  all  of  the  points  at  issue) 
that  a  " general  law"  regulating  the  matter  of  street  improvements 
for  all  cities  applied  to  San  Francisco  and  operated  to  modify  its 
charter  provisions.  It  was,  however,  at  its  next  term  that  the 
court,  considering  in  the  important  case  of  Thomason  v.  Ashworth *  \  J 
the  applicability  to  San  Francisco  of  a  " general"  street  improve- 
ment law,  rendered  an  opinion  that  could  be  easily  analyzed  and 
understood.  In  doing  so  the  absurdity  of  the  interpretation  which 
in  the  Staude  case  was  put  upon  the  phrase  "general  laws"  as 
employed  in  the  constitutional  provisions  relating  to  cities  was 
fully  demonstrated. 

In  1883  the  legislature  of  California  enacted  a  general  municipal 
charter  law  or  code  which  in  accordance  with  the  terms  of  the 
constitution  classified  the  cities  of  the  state  upon  the  basis  of 
population,  and  provided  that  any  city  might  organize  with  the 
form  of  government  applicable  to  its  class  upon  an  affirmative 
vote  of  its  inhabitants.  San  Francisco  did  not  accept  this  act. 
It  remained  under  its  old  special  charter  —  the  consolidation  act 
of  1856  as  amended  by  special  laws  up  to  1879  and  by  the  Hartson 
Act  of  1881.  In  1885  the  legislature  enacted  the  so-called  Vroo- 
man  Act  which  regulated  the  matter  of  assessments  for  street 
improvements.  This  street  law  was  made  applicable  to  "all 
cities"  of  the  state  but  it  was  clearly  also  in  the  nature  of  an 
amendment  to  the  general  municipal  law  of  1883,  which  contained 
elaborate  provisions  in  respect  to  the  matter  of  street  improve- 
ments, and  which  was  not  applicable  to  San  Francisco.  The 
court  held  nevertheless,  following  the  doctrine  of  the  Staude  case, 
that  this  law,  relating  to  a  specific  matter  which  was  universally  a 
part  of  the  laws  providing  for  the  "incorporation"  and  "organi- 
zation" of  cities,  operated  to  supersede  the  provisions  of  the  old 
charter  of  San  Francisco  upon  the  same  subject.  To  this  curious 
ruling  Judge  McKinstry  registered  a  powerful  and  convincing 
dissent.  He  pointed  out  that  it  was  indeed  a  strange  situation 

1  73  Cal.  73  (1887) ;   reaffirmed  in  Hellman  v.  Shoulters,  114  Cal.  136  at  p.  147 
(1896). 


238  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

that  while  the  general  municipal  law  of  1883  could  not  be  made 
operative  in  San  Francisco  without  the  assent  of  the  voters,  yet 
this  law  "  amending  and  revising  the  general  law  became  at  once 
binding  upon  the  city  and  citizens."  This  decision  was  rendered 
just  at  the  time  when  the  right  to  frame  freeholders'  charters  was 
being  extended  in  California  to  all  cities  of  more  than  ten  thou- 
sand inhabitants.  It  was  doubtless  this  fact  which  led  the  learned 
dissenting  judge  to  declare: 

Observe  how  carefully  the  constitution  has  guarded  against  legislative 
interference  with  any  charter  which  shall  be  adopted  in  the  manner  pro- 
vided in  section  8.  Such  a  charter  (which  by  section  6  will  undoubtedly 
"be  subject  to  and  controlled  by  general  laws "  —  whatever  the  phrase  may 
mean)  can  only  be  amended  "at  intervals  of  not  less  than  two  years;" 
each  amendment  must  be  submitted  to  the  electors,  and  must  be  ratified 
"by  at  least  three-fifths  of  the  qualified  voters."  To  become  operative, 
it  must  then  be  approved  by  a  majority  of  all  the  members  of  the  legisla- 
ture "elected  to  each  house." 

Verily,  if  a  new  charter,  which  may  be  adopted  for  San  Francisco,  can 
be  amended  out  of  existence  by  statutes  passed  in  the  legislature  by  a 
majority  composed  in  no  part  of  members  representing  San  Francisco,  — 
as  it  may  be  if  the  present  charter  can  be  so  amended,  —  the  laborious 
efforts  of  the  constitution-makers  to  prohibit  amendments,  except  with 
the  consent  of  three-fifths  of  the  qualified  electors  of  the  city  have  been  of 
little  avail.  With  all  respect,  such  a  result  seems  to  me  reductio  ad  ab- 
surdum. 

In  his  opinion  the  general  laws  which  the  constitution  declared 
that  cities  should  "be  subject  to  and  controlled  by"  were  laws 
that  were  "general"  in  the  sense  that  they  did  not  regulate  "local" 
affairs.  And  as  examples  of  such  laws  he  cited  "laws  relating  to 
the  organization  of  the  superior  courts,  laws  denning  crimes  and 
civil  rights,  regulating  the  mode  of  contracting,"  and  "perhaps 
all  laws  which  confer  rights  or  impose  duties  upon  all  the  people, 
or  it  may  be  a  portion  of  the  people  of  the  state,  but  which  are 
not  local  in  that  they  apply  only  to  the  people  within  particular 
places  less  than  the  whole  state." 1  As  has  already  been  said,  this 
was  an  interpretation  of  the  term  "general  laws"  as  used  in  the 

1  See  similar  dissenting  opinion  of  Fox,  J.,  in  Ex  Parte  Ah  You,  82  Cal.  339 
(1890). 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      239 

concluding  sentence  of  section  six  which  the  California  court  never 
came  to  accept. 

In  Brooks  v.  Fischer,1  a  case  already  mentioned  in  another 
connection,  the  court  was  called  upon  for  the  first  time  to  con- 
strue the  term  " general  laws"  as  applied  specifically  to  the  case 
of  a  freeholders'  charter.  But  the  request  was  presented  in  the 
form  of  a  general  and  vague  contention  that  some  of  the  pro- 
visions of  the  Los  Angeles  charter  of  1889  were  in  conflict  with 
"general  laws"  of  the  state  and  that  in  consequence  the  entire 
charter  was  a  nullity.  As  might  have  been  expected,  the  court 
answered : 

It  may  be  that  certain  of  its  [the  charter's]  provisions  are  inconsistent 
with  present  laws,  and  that  so  far  it  cannot  be  effective  as  against  such 
laws,  but  this  is  a  matter  that  it  is  unnecessary  for  us  to  determine.  It 
is  enough  to  say  that  the  whole  charter  cannot  be  held  to  be  invalid  because 
of  the  fact  that  a  few  of  its  provisions  may  conflict  with  general  statutes 
now  in  force. 

As  has  already  been  mentioned,2  the  California  constitution  of 
1879  contained  a  provision  which  in  effect  prohibited  the  deposit 
of  public  funds  in  any  bank.  In  spite  of  this  fact  and  of  the  fact 
that  laws  had  been  enacted  to  effectuate  this  provision,  section 
forty-four  of  the  freeholders'  charter  of  Los  Angeles  authorized  the 
treasurer  of  the  city  to  make  such  deposits  of  the  public  moneys 
of  the  city.  The  case  of  Yarnell  v.  The  City  of  Los  Angeles 3 
arose  out  of  a  taxpayers'  action  seeking  to  enjoin  the  treasurer 
from  exercising  the  authority  thus  conferred  by  the  charter.  In 
granting  the  relief  sought  the  court,  having  sustained  the  con- 
tention that  the  charter  provision  was  in  violation  of  the  consti- 
tution, went  on  to  show  also  that  the  charter  provision  was  in 
conflict  with  the  general  laws  of  the  state.  The  opinion  did  not 
turn  upon  the  view  that  the  control  of  municipal  moneys  was  a 
matter  of  state  concern,  and  nothing  new  was  added  to  general 
rules  of  interpretation  that  had  been  laid  down  in  the  cases  men- 
tioned above. 

1  79  Cal.  173  (1889) ;  supra,  205. 
«  Supra,  211.  »  87  Cal.  603.     1891. 


240     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

A  slight  variation,  however,  was  disclosed  in  the  case  of  the 
People  ex  rel.  Willis  v.  Howard,1  decided  in  1892.  In  1878  a  pub- 
lic library  was  organized  in  the  city  of  Los  Angeles  under  the 
authority  of  a  special  statute  enacted  in  1874.  In  1880  the  legis- 
lature passed  a  general  law  enabling  any  city  to  establish  a  library 
and  providing  an  organization  for  its  management  and  control. 
In  her  freeholders'  charter  of  1889  Los  Angeles  made  provision  for 
the  administration  of  the  city  library,  and  a  contest  as  to  authority 
arose  between  certain  library  trustees  who  were  elected  under  the 
general  law  of  1880  and  the  trustees  who  in  accordance  with  the 
charter  provision  were  appointed  by  the  city  council.  Said  the 
court: 

The  relators  insist  that,  the  act  of  1880  being  a  general  law,  its  provi- 
sions apply  to  all  libraries  existing  in  cities  as  public  libraries,  and  that 
trustees  elected  under  the  act  of  1880  have  the  legal  right  to  manage  and 
control  all  public  libraries  in  such  cities,  and  that  therefore  they  have  the 
legal  right  to  the  control  of  the  Los  Angeles  public  library.  The  de- 
fendants contend  that  the  act  of  1880  applies  solely  to  libraries  established 
under  its  provisions,  and  not  to  those  existing  prior  to  1880,  and  established 
prior  to  that  time  under  special  laws  and  charters. 

At  the  time  this  library  was  established  as  a  public  library,  there  was 
no  constitutional  inhibition  of  the  enactment  of  local  or  special  laws  for 
such  purposes. 

The  provisions  of  the  present  constitution  making  cities  and  charter 
cities  subject  to  general  laws  do  not  apply  to  this  case ;  for  it  is  manifest 
that  they  can  be  subject  only  to  such  general  laws  as  by  their  terms  or  by 
necessary  implication  are  made  to  apply  to  cities,  or  generally  throughout 
the  state.  So,  also,  it  is  clear  that  public  libraries  in  cities  are  not  neces- 
sarily subject  to  a  general  law  which  by  its  own  terms  does  not  apply  to 
all  libraries  generally,  but  only  to  a  particular  class  of  libraries. 

The  decision  of  the  court  in  this  case  must  not  be  construed  as 
one  of  special  liberality.  It  is  difficult  to  see  how  a  contrary  deci- 
sion could  have  been  given.  The  general  law  of  1880  was  merely 
permissive.  Los  Angeles  had  never  availed  itself  of  this  law  be- 
cause prior  to  its  enactment  the  city  had  already  established  a 
public  library  under  a  valid  special  law.  Under  the  constitution 
the  only  possible  ground  upon  which  the  provisions  of  the  free- 

1  94  Cal.  73.     1892. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      241 

holders'  charter  respecting  the  management  of  the  library  could 
have  been  held  inoperative  was  that  such  provisions  were  subject 
to  and  controlled  by  some  general  law.  But  how  could  such  pro- 
vision have  been  held  to  be  controlled  by  a  law  which  by  its  very 
terms  had  no  application  whatever  until  the  city  had  voluntarily 
acted  under  it  ?  Had  the  city  actually  established  a  library  under 
the  general  law  of  1880,  there  might  have  been  some  foundation 
for  the  contention  that  this  law  operated  to  "  control "  the  charter 
provisions  subsequently  adopted.  As  the  circumstances  stood, 
however,  the  contention  was  very  nearly  ridiculous.  It  is  impor- 
tant to  note,  however,  that  the  decision  of  this  case  did  not  rest 
upon  the  notion  that  a  library  was  a  matter  of  local  concern.1 

The  Doctrine  as  to  the  Control  of  "General  Laws"  over  Charter  Pro- 
visions considered  in  its  Relation  to  the  Subject  of  Police  Courts 

The  doctrine  of  the  court  as  laid  down  in  the  Staude  case  and 
the  case  of  Thomason  v.  Ashworth  received  additional  application 
in  the  case  of  the  People  ex  rel.  Daniels  v.  Henshaw,2  where  it  was 
held  that  an  act  of  the  legislature  passed  in  1885  "to  provide 
police  courts  in  cities  having  thirty  thousand  and  under  one  hun- 
dred thousand  inhabitants"  operated  to  supersede  the  provisions 
on  this  same  subject  contained  in  the  legislative  charter  of  Oak- 
land, which  dated  back  to  1866.  In  1889  a  freeholders'  charter 
became  effective  in  Oakland.  This  charter  made  provisions  for 
a  police  court;  and  one  Ah  You  was  convicted  before  the  court 
thus  established.  He  applied  for  a  writ  of  habeas  corpus  on  the 
ground  that  the  court  had  no  legal  existence  because  the  charter 
provision  which  attempted  to  give  it  validity  was  void  as  being 

1  See  also  Kennedy  v.  Board  of  Education,  82  Cal.  483  (1890),  where  it  was 
held  that  a  general  law  of  the  state  which  provided  that  a  teacher  "when  elected, 
shall  be  dismissed  only  for  violation  of  the  rules  of  the  board  of  education,  or  for 
incompetency,  unprofessional  or  immoral  conduct"  was  a  law  which  governed  the 
action  of  the  board  of  education  of  San  Francisco,  anything  in  its  charter  —  the 
old  consolidation  act  —  to  the  contrary  notwithstanding.     This  case  was  not 
decided  upon  the  ground  that  education  was  a  matter  of  "general"  as  distinguished 
from  "local"  concern. 

2  76  Cal.  436.     1888. 


242     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

in  conflict  with  an  existing  general  law  of  the  state  —  the  above- 
mentioned  law  of  1885.  The  court  sustained  this  contention.1 
Referring  to  the  case  of  the  People  ex  rel.-  Daniels  v.  Henshaw,  it 
was  declared : 

If  that  case  was  correctly  decided,  —  if  the  old  charter  was  superseded 
by  the  law  of  1885,  —  there  can  be  no  question  that  the  freeholders' 
charter  adopted  is  also  subject  to  the  same  act.  .  .  . 

The  freeholders'  charter  of  Oakland  was  "framed  and  adopted  by 
authority  of  this  constitution"  (Art.  11,  sec.  8,  as  amended  in  1887), 
and  is  not  only  "subject  to  and  controlled  by  general  laws,"  according 
to  the  express  terms  of  section  6  of  article  11,  but  was  also  required  by  the 
section  (8),  in  pursuance  of  which  it  was  framed,  to  be  "consistent  with  and 
subject  to  the  constitution  and  laws  of  this  state." 

There  is,  therefore,  no  escape  from  the  conclusion  that  if  the  old  charter 
was  superseded  by  the  act  of  1885,  the  new  charter  is  subject  to  and  con- 
trolled by  it,  and  the  police  court  which  the  freeholders'  charter  attempted 
to  establish  must  be  held  to  have  no  legal  existence  unless  we  are  prepared 
to  squarely  overrule  the  decision  in  People  v.  Henshaw. 

It  will  be  observed  that  the  argument  here  employed  by  the 
court  was  wholly  different  from  that  advanced  in  the  case  of  the 
People  v.  Toal 2  to  support  the  judgment  of  invalidity  passed  upon 
the  provisions  of  the  freeholders'  charter  of  Los  Angeles  establish- 
ing a  police  court.  The  two  cases  were  decided  in  the  same  year. 
The  charter  provisions  under  review  related  to  the  same  subject- 
matter.  Why  then  this  difference?  In  view  of  this  very  perti- 
nent question  it  may  not  be  amiss  briefly  to  review  at  this  point 
the  entire  curious  line  of  California  decisions  upon  the  subject  of 
municipal  charters  and  police  courts  —  a  subject  which  appears 
to  have  given  both  the  courts  and  the  cities  an  endless  amount  of 
trouble. 

As  far  back  as  1884  was  decided  the  case  of  In  re  Carrillo.3  It 
was  there  held  that  a  provision  of  the  legislative  charter  of  San 
Jose",  dating  from  1874,  had  been  amended  by  a  general  law  of 
1880  establishing  a  police  court  in  every  city  of  the  state.  It 
appears,  however,  that  San  Jose*,  never  having  regarded  the  law 

1  Ex  parte  Ah  You,  82  Cal.  339.     1890. 
»  Supra,  206.  »  66  Cal.  3.     1884. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      243 

as  applicable,  had  not  elected  the  police  judge  required  by  the 
law.  It  was  held,  therefore,  the  theory  not  being  clear,  that  "the 
charter  of  the  city  as  to  the  judicial  power  of  the  city  remained  in 
full  force,"  and  that  Carrillo  was  properly  convicted  before  the 
police  court  established  under  the  old  legislative  charter.  It 
seems  self-evident  that  such  a  conclusion  was  reached  in  this  case 
on  the  "practical"  ground  that  the  city  would  otherwise  have  had 
no  legally  established  police  court  at  all. 

In  the  above-mentioned  case  of  the  People  v.  Henshaw1  it  was 
determined  in  1888  that  the  provisions  of  the  legislative  charter 
of  Oakland  on  the  subject  of  police  courts  had  been  superseded  by 
the  law  of  1885  establishing  police  courts  for  cities  of  from  thirty 
to  one  hundred  thousand  inhabitants,  these  cities  being  Oakland 
and  Los  Angeles. 

In  1890  it  was  decided  in  the  Ah  You  case2  that  this  law  also 
"controlled"  the  provisions  in  respect  to  this  matter  that  were 
incorporated  into  the  freeholders'  charter  of  Oakland  adopted  in 
1889.  In  other  words,  the  police  court  that  existed  in  the  city, 
being  established  by  the  law,  remained  unaltered  when  the  home 
rule  charter  went  into  operation.  Since  this  law  was  a  "general 
law"  it  was  not  "superseded"  by  the  freeholders'  charter  along 
with  the  old  legislative  charter. 

Los  Angeles,  however,  had  never  paid  any  attention  to  the  law 
of  1885  which  provided  a  police  court  for  itself  and  Oakland,  nor 
to  the  decision  of  the  Carrillo  and  more  especially  the  Henshaw 
case.  For  five  years  after  the  passage  of  the  act  of  1885  the  police 
court  in  this  city  as  established  under  the  existing  legislative 
charter  had  continued  in  operation  just  as  if  the  general  law  in 
question  had  never  gone  upon  the  statute  books.  Under  these 
circumstances  it  would  have  been  manifestly  embarrassing  to  have 
contended  in  the  Toal  case  3  that  the  Los  Angeles  charter  of  1889 
was  "controlled  by"  the  law  of  1885  when  in  plain  fact  the  legis- 
lative charter  had  in  practice  never  been  "controlled  by"  such 
law.  The  constitution  made  no  distinction  between  new  free- 
holders' charters  and  old  legislative  charters  in  this  regard.  Of 

1  Supra,  241.  *  Supra,  241,  242.  »  Supra,  206. 


244     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

course  the  curious  rule  laid  down  in  the  Carrillo  case,  where  it  was 
in  effect  held  that  an  old  charter  provision  although  controlled  by 
a  subsequently  enacted  law  was  still  in  force  because  the  city  had 
failed  to  obey  the  law,  might  have  been  applied.  But  it  is  possible 
that  the  court  was  willing,  if  not  anxious,  to  forget  this  rule.  At 
any  rate,  in  the  Toal  case  the  unfortunate  device  was  hit  upon  of 
declaring  the  charter  provisions  inoperative  upon  the  ground  that 
they  created  an  "inferior  court"  which  was  not  established  "by 
law."  *  Following  this  decision  a  police  court  was  set  up  in  Los 
Angeles  as  prescribed  by  the  law  of  1885.2 

The  doctrine  of  the  Toal  case  was  reaffirmed  and  extended  in 
Ex  parte  Sparks  3  and  in  Miner  v.  Justices'  Court,4  where  the  police 
courts  established  by  provisions  of  freeholders'  charters  in  Sacra- 
mento and  Berkeley  were  declared  to  be  invalid.  This  doctrine 
was  relied  upon  doubtless  for  the  same  reasons  that  prompted  its 
original  pronouncement  —  namely,  that  no  police  court  established 
under  general  law  had  been  in  operation  in  these  cities,  and  it 
would  be  difficult  to  hold  that  a  general  law  which  had  not  in 
practice  "controlled"  the  old  legislative  charters  nevertheless  did 
"control"  the  new  freeholders'  charters. 

This  explanation  of  the  strangely  shifting  views  of  the  Cali- 
fornia court  upon  this  subject  may  not  be  wholly  correct ;  but  it 
is  not  easy  to  see  what  other  explanation  could  be  offered.  No 
intimation  whatever  of  such  a  "practical"  explanation  is  to  be 
found  in  the  opinions  expressed.  The  Ah  You  case  and  the  Toal 
case  which,  upon  wholly  different  grounds,  held  the  police  courts 
of  Oakland  and  Los  Angeles  to  be  invalid  were  decided  at  the  same 
term  of  court.  Neither  case  was  mentioned  in  the  opinion  de- 
livered in  the  other.  Yet  the  general  law  of  1885  which  was  held 
to  "control"  the  Oakland  charter  was  equally  applicable  to  Los 
Angeles.  The  only  possible  explanation  is  that  some  practical 
reason  existed  for  the  failure  of  the  court  to  decide  the  two  cases 
upon  precisely  the  same  grounds.  The  reason  here  offered  appears 
to  have  at  least  a  plausible  foundation. 

1  Supra,  206  ff.  2  In  re  Mitchell,  120  Cal.  384.     1898. 

3  120  Cal.  395  (1898) ;  supra,  207.     «  121  Cal.  264  (1898) ;  supra,  207. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      245 

But  apart  from  the  fact  that  the  court  allowed  itself  to  drift 
into  this  unconscionable  muddle  of  doctrines  —  a  fact  in  itself  of 
no  mean  significance  as  bearing  upon  the  difficulty  of  phrasing  a 
constitutional  provision  conferring  home  rule  powers  —  the  most 
important  point  to  be  noted  is  that  in  declaring  a  charter  provi- 
sion dealing  with  police  courts  to  be  "subject  to"  and  "controlled 
by"  a  general  law,  the  court  did  not  rest  upon  the  view  that  such 
a  matter  was  of  state  as  distinguished  from  local  concern.  The 
law  took  precedence  simply  because  it  was  general  in  application 
and  not  because  it  was  general  as  to  its  subject. 

The  Doctrine  as  to  the  Control  of  (( General  Laws"  applied  Spe- 
cifically to  the  Case  of  Freeholders'  Charters 

As  has  already  been  said,  Brooks  v.  Fischer J  was  the  first  case  in 
which  the  California  court  was  called  upon  to  declare  —  what  was 
manifestly  the  situation  created  by  the  terms  of  the  constitution 
—  that  a  freeholders'  charter  was  on  precisely  the  same  footing 
in  its  subordinate  relation  to  the  "general  laws"  of  the  state  as  a 
legislative  charter  that  antedated  the  adoption  of  the  constitution. 
After  1889,  the  year  in  which  freeholders'  charters  first  became 
effective  in  certain  cities  of  California,  the  cases  that  came  before 
the  court  requiring  the  determination  of  the  relation  between 
"general  laws"  and  charter  provisions  were  concerned  interchange- 
ably with  freeholders'  charters  and  legislative  charters  that  still 
remained  in  force.  But  since  the  principles  laid  down  were 
applicable  alike  to  both  classes  of  charters,  no  distinction  need  be 
made  upon  this  ground,  although  in  fact  most  of  the  cases  to  which 
reference  is  made  below  concerned  the  application  of  the  rule  of 
control  by  general  laws  to  instances  of  freeholders'  charters. 

In  the  People  ex  rel.  Johnson  v.  Bagley  2  the  court  was  asked  to 
declare  that  the  city  of  Stockton,  which  in  1884  had  voluntarily 
organized  under  the  general  municipal  corporation  act  of  the 
previous  year  and  in  which  a  freeholders'  charter  had  become 
effective  in  March,  1889,  was  in  spite  of  the  adoption  of  such 

1  Supra,  205,  239.  '85  Cal.  343.     1890. 


246     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

charter  still  subject  to  the  control  of  that  provision  of  the  general 
act  which  regulated  the  number  of  councilmen.  The  court  held, 
as  might  have  been  expected,  that  the  municipal  corporation  act 
ceased  to  be  applicable  to  the  city  of  Stockton  upon  the  ratification 
of  the  freeholders'  charter.  This  decision  was  based  upon  the 
fact  that  this  general  act  was  merely  permissive,  whereas  the  gen- 
eral laws  which  all  charters  were  subject  to  and  controlled  by  were 
mandatory  in  character.  It  was  also  pointed  out  by  the  court 
that  to  sustain  the  contention  prayed  for  would  be  in  effect  to 
preclude  any  city  which  had  by  a  vote  of  its  people  organized 
under  the  general  municipal  corporation  act  from  ever  enjoying 
the  right  to  frame  its  own  charter,  because  it  was  obvious  that  a 
freeholders'  charter  which  remained  subject  to  and  controlled  by 
all  the  provisions  of  the  general  charter  law  would  be  merely  a 
"  delusion."  The  very  fact  that  such  a  contention  as  was  here 
raised  could  be  seriously  urged  upon  the  court  was  somewhat  elo- 
quent of  the  curious  uncertainty  of  the  rule  of  construction  which 
had  been  applied  to  the  term  "general  laws"  as  employed  in  the 
constitutional  provision  under  review. 

The  municipal  authorities  of  Los  Angeles  who  were  chosen  under 
the  freeholders'  charter  of  1889  were  not  slow  to  give  some  heed 
to  the  restricted  view  which  the  supreme  court  of  the  state  had 
taken  of  the  rights  of  cities  under  the  constitution.  Thus  the 
charter  framed  by  the  city  contained  ample  provisions  for  the 
opening,  closing,  and  widening  of  streets.  But  shortly  after  its 
ratification  by  the  legislature  a  general  law  regulating  this  matter 
for  all  cities  of  the  state  had  been  enacted.  The  street  commis- 
sioner of  Los  Angeles  immediately  ignored  the  charter  provisions 
and  proceeded  to  act  under  this  statute.  In  Davies  v.  The  City 
of  Los  Angeles  1  the  court  held  that  he  acted  with  commendable 
propriety,  since  "all  charters  framed  and  adopted  under  the  con- 
stitution" were  "subject  to  and  controlled  by  general  laws." 

To  the  same  effect  was  the  decision  of  the  court  in  the  case  of 
Kennedy  v.  Miller,2  which  held  that  the  provisions  of  the  free- 
holders' charter  of  San  Diego  regulating  the  matter  of  school  funds 

1  86  Cal.  37.     1890.  »  97  Cal.  429  (1893) ;  infra,  295. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      247 

were  inoperative  as  being  in  conflict  with  the  general  laws  of  the 
state  upon  this  subject.  In  this  case  attention  was  called  to  the 
fact  that  the  constitution  made  education  a  matter  of  state  care 
and  supervision ;  but  this  fact  was  apparently,  in  the  view  of  the 
court,  merely  an  incident.  The  decision  really  rested  upon  the 
existence  of  a  conflict  between  the  charter  requirements  and  a 
state  law  of  general  application. 

Shortly  after  the  charter  of  San  Diego  went  into  effect  a  portion 
of  the  city  known  as  Coronado  Beach  was  separated  from  the  city, 
action  having  been  taken  under  a  general  law  of  the  state  entitled 
"an  act  to  provide  for  changing  the  boundaries  of  cities  and  munici- 
pal corporations,  and  to  exclude  territory  therefrom."  The  descrip- 
tion of  the  boundaries  of  the  municipality  as  set  forth  in  the  char- 
ter naturally  included  this  territory ;  and  the  action  taken  under 
the  general  law  naturally  amended  the  charter  provisions  in 
this  respect.  The  court  held  in  the  case  of  the  People  ex  rel. 
Connolly  v.  City  of  Coronado  1  that  the  law  in  question  applied  to 
cities  under  freeholders'  charters,  and  that  by  the  proceedings  had 
under  the  law  the  territory  was  validly  separated. 

It  will  be  observed  that  the  question  here  involved  differs  some- 
what from  that  involved  in  the  annexation  of  territory.2  The 
division  of  a  municipality  into  two  separate  corporations  may, 
not  without  considerable  force  of  logic,  be  regarded  as  a  matter 
of  strictly  local  concern,  although  the  annexation  of  territory 
might  not  be  so  regarded.  However,  under  the  rule  applied  by  the* 
California  courts  prior  to  1896  it  was  of  no  importance  whether  a 
law  of  general  applicability  did  or  did  not  deal  with  a  subject  of 
local  or  municipal  concern. 

In  the  case  of  the  People  ex  rel.  Wood  v.  Sands 3  the  court  sus- 
tained the  right  of  the  board  of  supervisors  of  Alameda  county  to 
fill  a  vacancy  in  the  office  of  a  justice  of  the  peace  elected  for  the 
city  of  Oakland,  on  the  ground  that  a  general  law  of  the  state 
vested  such  power  in  the  county  board.  This  was  not,  however, 
a  clear  case  in  which  a  law  of  the  state  was  held  to  control  a  pro- 
vision of  a  freeholders'  charter ;  for  while  the  charter  contained  a 

1  100  Cal.  571.     1893.          »  Supra,  146  ;  infra,  269.          » 102  Cal.  12.     1894. 


248     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

provision  conferring  upon  the  mayor  power  to  fill  vacancies  in 
general,  the  court  construed  this  provision  to  refer  to  offices  cre- 
ated by  the  charter.  The  office  of  justice  of  the  peace  was  not 
one  of  these. 

In  Miller  v.  Curry  *  it  was  held  that  a  general  law  enacted  in 
1895  regulating  the  fees  of  county,  township,  and  other  officers 
applied  to  the  clerk  of  the  city  and  county  of  San  Francisco  and 
operated  to  supersede  the  provisions  on  the  same  subject  that 
were  contained  in  the  charter  of  the  consolidated  corporation.  In 
this  case  the  court,  at  the  instance  of  counsel,  gave  a  somewhat 
new  turn  to  the  discussion.  It  had  been  so  often  held  that  a  gen- 
eral law  controlled  a  conflicting  provision  of  a  municipal  charter 
that  little  attention  was  given  to  this  point.  The  broader  doc- 
trine was  here  urged  upon  the  court  that  a  general  law  does  not 
necessarily  repeal  a  special  law  dealing  with  the  same  subject. 
As  applied  to  the  special  legislative  charter  of  San  Franciso  this 
doctrine  was  rejected  by  the  court. 

In  the  same  year  there  was  decided  by  the  court  the  somewhat 
astounding  case  of  Kahn  v.  Sutro,2  in  which  the  doctrine  of  the 
supremacy  of  general  laws  of  the  state  over  provisions  of  mu- 
nicipal charters  was  carried  to  the  utmost  extreme.  It  will  be 
recalled  that  in  the  case  of  Staude  v.  Election  Commissioners  3  it 
had  been  held  that  a  law  fixing  the  time  of  the  election  of  "city 
and  county"  officers  superseded  the  contrary  provisions  of  the 
legislative  charter  of  San  Francisco.  San  Francisco  was  the  only 
municipality  of  the  state  which  had  "city  and  county"  officers; 
and  the  law  specifically  included  such  officers  within  the  scope  of 
its  application. 

In  1893  the  legislature  passed  a  law  known  as  the  "county 
government  act,"  which  among  other  things  extended  the  term  of 
certain  enumerated  county  officers  from  two  to  four  years.  The 
act  expressly  referred  only  to  "county"  officers,  no  mention 
being  made  of  "city  and  county"  officers.  The  question  arose 
whether  the  act  applied  to  any  officers  in  the  city  and  county  of 
San  Francisco.  Referring  to  certain  cases  previously  adjudicated 

1  113  Cal.  644.     1896.  *  114  Cal.  316.     1896.  8  Supra,  234. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      249 

—  most  of  which  have  been  discussed  above  —  the  court  declared 
that  it  might  "be  regarded  as  settled  by  the  decisions  of  this  court 
that  the  city  and  county  of  San  Francisco  is  a  municipal  corpo- 
ration, and  in  matters  of  government  is  to  be  regarded  as  a  city." 
But,  said  the  court,  "the  officers  elected  by  voters,  to  the  extent 
that  they  exercise  only  such  powers  as  are  given  by  laws  relating 
merely  to  counties,  and  do  not  derive  any  of  their  authority  from 
the  charter,  are  to  be  regarded  as  county  officers,  as  distinguished 
from  city  officers."  The  conclusion  was  reached  that  San  Fran- 
cisco was  not  "a  city  and  county"  but  "both  a  city  and  a  county" 
—  the  repetition  of  the  article  being  all  significant.  "It  must 
follow  from  this  that  some  of  its  officers  are  city  officers  and  others 
are  county  officers."  The  court  thereupon  made  an  elaborate 
examination  of  the  officers  named  in  the  county  government  act 
as  compared  with  those  named  in  the  charter,  or  consolidation 
act,  inquiring  minutely  into  their  functions  and  the  sources  of 
their  authority.  Upon  the  basis  of  this  examination  it  was  held 
that  while  the  mayor,  the  attorney  and  counsellor,  the  superin- 
tendent of  streets,  highways,  and  squares,  and  the  school  directors 
were  "city  officers"  (these  not  being  named  in  the  county  govern- 
ment act  at  all) ;  and  while  the  treasurer,  tax  collector,  and  sur- 
veyor must  also  be  classed  as  "city  officers"  (because  although 
these  were  named  in  the  county  government  act  they  were  also 
given  functions  by  the  charter) ;  yet  the  district  attorney,  sheriff, 
clerk,  recorder,  coroner,  and  public  administrator  were  "county 
officers"  (because  although  named  in  the  charter  their  functions 
were  determined  primarily  by  state  laws).  The  term  and  the 
time  of  election  of  these  latter  officers  were,  therefore,  controlled 
by  the  county  government  act.  From  this  decision  two  judges 
dissented. 

In  view  of  all  the  circumstances  the  opinion  handed  down  in 
this  case  is  certainly  open  to  grave  criticism.  In  the  law  under 
review  the  legislature,  fully  cognizant  of  the  peculiar  situation  in 
San  Francisco,  had  omitted  all  reference  to  "city  and  county" 
officers.  The  constitution  expressly  recognized  that  a  merged  city 
and  county  was  "one  municipal  government,  with  one  set  of  of- 


250  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

ficers."  1  The  decision  of  the  court  in  effect  declared  that  in  such 
corporations  there  were  two  sets  of  officers,  the  same  being  "county 
officers"  and  "city  officers."  It  seems  clear,  as  was  pointed  out 
by  Judge  Temple  in  his  dissenting  opinion,  that  the  constitution 
recognized,  as  the  legislature  had  also  recognized  in  many  laws, 
that  a  consolidated  government  resulted  in  the  establishment  of  a 
distinct  class  of  officers  not  one  of  whom  was  either  a  "city  officer" 
or  a  "county  officer"  but  who  were  all  "city  and  county  officers." 
Had  the  decision  turned  upon  a  matter  of  function  or  of  policy 
laid  down  by  state  law  which  some  officer  of  the  city  and  county 
corporation  had  refused  to  be  guided  by,  the  judgment  which  the 
court  reached  might  easily  have  been  justified,  although  it  would 
doubtless  have  been  rested  upon  different  grounds.  But  in  any 
candid  view  the  conclusion  is  almost  irresistible  that  the  court 
here  held  certain  provisions  of  the  charter  of  San  Francisco  to  be 
superseded  by  a  general  law  which  might  easily  have  been  regarded 
as  inapplicable,  and  which  it  was  by  no  means  clear  that  the  legis- 
lature had  intended  to  make  applicable  to  that  municipality. 

From  the  above  review  of  the  cases  construing  the  provisions  of 
the  constitution  which  subordinated  municipal  charters,  whether 
framed  by  a  board  of  freeholders  or  not,  to  the  control  of  "general 
laws"  enacted  by  the  legislature,  the  conclusion  seems  justified 
that  the  supreme  court  of  California  took  an  extremely  narrow 
and  not  wholly  logical  view  of  the  rights  of  cities  as  determined  by 
the  somewhat  confusing  terms  of  the  constitution.  The  practical 
result  of  the  application  of  this  view  was  that  while  the  legislature 
could  not  enact  a  comprehensive  scheme  of  government  for  cities 
or  classes  of  cities  in  the  state  which  would  become  effective  with- 
out local  acceptance,  yet  the  legislature  could  by  the  enactment 
of  general  laws  applicable  to  all  cities  or  classes  of  cities  control 
without  such  acceptance  any  phase  or  aspect  of  local  government 
that  it  desired  to  control.  Nor  must  it  be  thought  that  the  extent 
of  this  legislative  domination  was  actually  measured  by  the  specific 
cases  adjudicated  before  the  highest  court  of  the  state.  The  gen- 

1  Sec.  7  of  Art.  XI ;   supra,  202. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      251 

eral  doctrine  laid  down  by  that  court  was  applied  in  numerous 
cases  that  were  not  appealed  from  the  lower  courts  and  was  de- 
ferred to  by  the  cities  of  the  state  not  only  as  a  limitation  upon 
their  freedom  in  the  framing  of  freeholders'  charters  but  also  as  a 
guide  for  their  officials,  who  in  some  instances  accepted  without 
controversy  before  the  courts  the  provisions  of  general  laws  which 
under  this  doctrine  clearly  superseded  charter  provisions.1  Indeed 
it  would  be  quite  impossible  to  measure  the  full  effect  of  the  doc- 
trine. 

On  the  whole  it  must  be  said  that  the  interpretation  of  the  Cali- 
fornia court  was  far  less  liberal  than  that  which  was  ultimately 
applied  by  the  Missouri  court.  It  is  true  that  constitutional 
provisions  in  the  two  states  were  somewhat  different ;  but  neither 
can  be  said  to  have  been  more  contradictory  or  confusing  than  the 
other.  Out  of  the  chaos  of  the  Missouri  provision  the  court,  in 
spite  of  many  circumlocutions,  did  in  the  final  round-up  redeem  a 
considerable  measure  of  the  home  rule  right.  On  the  other  hand, 
had  the  constitution  of  California  not  been  amended,  there  is  no 
reason  to  suspect  that  the  California  court  would  have  imposed 
any  obstacle  to  the  unlimited  amendment  of  freeholders'  charters 
by  legislative  acts,  many  of  which  were  " general"  in  little  more 
than  form. 

1  As  an  instance  in  which  the  city  even  accepted  a  law  that  was  unconstitutional 
see  City  of  Los  Angeles  «.  Teed,  112  Cal.  319.  1896. 


CHAPTER  IX 

HOME  RULE  IN  CALIFORNIA  —  CONFLICT   BETWEEN' 

STATE  LAWS  AND  CHARTER  PROVISIONS 

AFTER   1896 

No  sooner  was  the  potential  effect  of  the  doctrine  of  the  su- 
premacy of  general  laws  over  freeholders'  charters  apparent  than 
agitation  arose  in  California  for  changing  the  terms  of  the  con- 
stitution to  which  this  doctrine  owed  its  origin.  In  1896  a  highly 
significant  phrase  was  inserted  in  the  constitutional  provision 
which  required  that  all  charters  should  be  "subject  to  and  con- 
trolled by  general  laws."  This  phrase  was  "except  in  municipal 
affairs."  After  its  insertion  the  last  clause  of  section  six 1  read 
as  follows : 

Cities  and  towns  heretofore  or  hereafter  organized,  and  all  charters 
thereof  framed  or  adopted  by  authority  of  this  constitution,  except  in 
municipal  affairs,  shall  be  subject  to  and  controlled  by  general  laws. 

The  adoption  of  this  amendment  was  a  somewhat  heroic  attempt 
to  put  a  stop  to  legislative  interference  with  the  local  affairs  of 
cities  through  the  medium  of  "general  laws"  by  giving  to  that 
term  the  restricted  definition  which  the  courts  had  refused  to  give. 
But  in  making  this  heroic  attempt  the  framers  of  the  amendment 
created  a  new  complication  which  the  courts  had  to  overcome  by 
simply  ignoring  the  literal  wording  of  the  provision.  It  will  be 
noted  that  the  "cities  and  towns"  and  the  "charters"  which 
were  made  subject  to  and  controlled  by  general  laws  "except  in 
municipal  affairs"  included  all  the  municipal  corporations  of 
the  state.  Now  there  were  in  California  at  the  time  of  the 
adoption  of  this  amendment,  as  there  still  are,  certain  small 

1  Supra,  202. 
252 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA        253 

cities  organized  under  the  general  municipal  code.  This  code 
of  course  consists  in  large  part,  if  not  entirely,  of  provisions 
dealing  with  municipal  affairs.  Under  a  literal  interpretation  of 
the  amendment  the  legislature  would  have  been  prevented  from 
altering  this  code  in  any  respect,  because,  as  to  municipal  affairs, 
every  city  of  the  state  was  exempted  from  the  control  of  general 
laws. 

In  the  case  of  Ex  parte  Jackson  1  it  was  held  that  the  power  to 
levy  license  taxes  was  a  municipal  affair,2  but  the  court  said  that 
the  right  of  the  legislature  to  regulate  this  power  for  cities  oper- 
ating under  the  " municipal  corporation  act"  was  "from  the  very 
nature  of  things"  unquestionable.  It  was  pointed  out  that  the 
first  clause  of  section  six  expressly  conferred  upon  the  legislature 
authority  to  "alter,  amend,  and  repeal"  those  general  laws  "for 
the  incorporation,  organization,  and  classification"  of  cities  which 
became  effective  only  upon  acceptance  by  the  voters.  Such  a  law 
was  the  general  "municipal  corporation  act."  It  followed,  there- 
fore, that  the  act  of  1901  restricting  the  licensing  power  of  counties, 
cities,  and  towns  was  a  general  law  applicable  to  cities  under  the 
municipal  corporation  act  even  though  the  act  in  question  related 
to  a  municipal  affair,3  In  other  words,  just  as  before  1896  the 
confusing  use  of  the  term  "general  laws"  in  the  original  provision 
was  resolved  by  the  courts  in  favor  of  the  power  of  the  legislature 
and  against  the  rights  of  cities,  so  also  after  1896  was  the  conflict 
of  provisions  that  resulted  from  a  delimitation  of  the  term  as  em- 
ployed in  one  of  its  connections  resolved  in  like  favor.  It  must 
be  admitted,  however,  that  there  was  larger  justification  for  the 
latter  construction  than  for  the  former.  The  point  is  of  no  im- 
portance in  connection  with  the  problem  of  home  rule  in  Cali- 
fornia, since  it  concerned  only  cities  operating  under  the  general 
municipal  code.  It  simply  demonstrates  the  carelessness  with 
which  the  original  confusing  phraseology  of  the  constitution  was 
amended. 

1  143  Cal.  564.     1904.  2  Infra,  280. 

3  This  doctrine  was  also  laid  down  as  dictum  in  Ex  parte  Helm,  143  Cal.  553 
(1904),  and  Ex  parte  Lemon,  ibid.,  558. 


254     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Cities  under  Special  Legislative  Charters  exempted  from  the  Control 
of  General  Laws  relating  to  "  Municipal  Affairs  " 

The  "municipal  affairs"  amendment  received  its  first  judicial 
interpretation  in  the  case  of  Morton  v.  Broderick.1  This  case  arose 
out  of  an  application  for  mandamus  to  compel  the  auditor  of  San 
Francisco  to  enter  upon  the  assessment  roll  taxes  which  had  been 
fixed  by  an  order  of  the  board  of  supervisors.  It  was  contended 
by  the  auditor  that  this  order  was  void  upon  the  ground,  among 
other  things,  that  it  lacked  the  signature  of  the  mayor  and  that  a 
general  act  of  the  legislature  passed  in  1897  required  "ordinances 
and  resolutions  passed  by  the  city  council,  or  other  legislative 
body  of  any  municipality,  to  be  presented  to  the  mayor,  or  other 
chief  executive  officer  of  such  municipality*,  for  his  approval."  To 
this  contention  the  court  gave  answer  as  follows : 

The  act  of  1897  unquestionably  deals  with  a  municipal  affair,  the  mode 
and  manner  of  the  passage  of  ordinances  and  resolutions  provided  for  in 
the  charter.  Under  this  constitutional  amendment  [of  1896],  such  acts 
now  apply  only  to  cities  and  to  their  charters  which  have  organized  under 
the  general  scheme  embraced  in  the  municipal  corporation  act.  (Stats. 
1883,  p.  93.)  San  Francisco  is  not  one  of  such  cities,  and  the  act  of  1897 
has,  therefore,  no  application  to  it. 

At  this  time  San  Francisco  was  still  operating  under  the  old 
consolidation  act  of  1856.  It  was  clear,  therefore,  as  indeed  under 
former  adjudications  there  could  be  little  question,  that  the  ex- 
emption of  cities  from  the  operation  of  general  laws  relating  to 
municipal  affairs  applied  to  cities  under  early  legislative  charters 
as  well  as  to  cities  under  freeholders'  charters.  Although  after 
1896  the  cities  of  California  were  rapidly  taking  advantage  of  the 
borne  rule  powers  conferred  by  the  constitution,  certain  of  the 
cases  discussed  below  are  concerned  with  the  relations  between 
special  legislative  charters  and  general  laws.  The  principles 
involved  are  in  no  wise  different  from  those  that  would  have  been 
applied  had  the  charters  been  of  the  home  rule  variety. 

With  the  end  in  view  of  making  comparisons  a  matter  of  no 

1  118  Gal.  474.     1897. 


ho 

CO 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      255 

t  difficulty,  the  California  cases,  like  the  Missouri  cases,  are 
discussed  under  appropriate  group  headings.  It  will  be  observed, 
however,  in  the  course  of  what  follows,  that  owing  to  the  unusual 
Duplications  of  the  California  home  rule  provisions  it  is  some- 
times necessary  to  explain  certain  points  that  are  only  collaterally 
related  to  the  concrete  question,  "  what  is  a  municipal  affair  ?"  It 
will  be  observed  also  that  question  as  to  the~~applicableness  of  a 
general  law  of  the  state  has  occasionally  been  raised  even  in  the 
total  absence  of  any  conflicting  charter  provision,  this  being  due 
to  the  fact  that  the  constitution  excepted  not  only  "  charters,"  but 
also  "cities,"  from  the  control  of  general  laws  relating  to  municipal 
affairs.  A  literal  reading  of  this  broad  declaration  would  evidently 
exempt  a  city  from  such  control  even  where  a  charter  was  silent 
upon  this  or  that  subject  of  municipal  concern. 

Is  the  Control  of  the  Police  a  Municipal  Affair  ? 

In  the  case  of  Popper  v.  Broderick 1  the  court  held  void  an  act  of 
the  legislature  passed  in  1897  which  raised  the  salaries  of  policemen 
and  firemen  in  cities  of  the  first  class  —  this  class  embracing  only 
the  city  of  San  Francisco.  Relying  upon  Kahn  v.  Sutro  2  the  court 
declared  that  policemen  and  firemen  had  in  that  case  been  classed 
as  "city  officers"  and  that  the  amendment  must  have  been  adopted 
with  the  definition  of  municipal  affairs  as  laid  down  in  that  case  in 
view.  "We  are  of  the  opinion,"  said  Judge  Van  Dyke,  "that  the 
pay  of  firemen  and  policemen  clearly  falls  within  the  term  '  mu- 
nicipal affairs/  "'  It  is  to  be  remarked  that  the  court  might  easily 
have  relied  upon  cases  in  a  number  of  jurisdictions  which  have,  in 
construing  constitutional  provisions  of  various  import  relating  to 
cities  and  especially  the  home  rule  provisions  of  the  Missouri  con- 
stitution,3 laid  down  the  rule  that  the  control  of  police  is  a  matter 
of  general  or  state  concern  rather  than  a  local  or  municipal  affair.4 

1  123  Cal.  456.     1899. 

2  114  Cal.  316  (1896)  ;   supra,  248.  «  Supra,  133,  142. 

4  As  being  more  or  less  in  point  see  Mayor  etc.  of  Baltimore  v.  State,  15  Md.  376 
(1859) ;  People  ex  rel.  Drake  ».  Mahaney,  13  Mich.  481  (1865),  as  qualified  and  ex- 
plained in  People  ex  rel.  Le  Roy  v.  Hurlbut,  24  Mich.  44  (1871)  ;  State  ex  rel.  At- 


256     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

But  these  cases  were  neither  discussed  nor  cited  in  the  opinion. 
Upon  the  basis  of  a  former  decision  of  its  own  the  court  elected 
to  give  broad  scope  to  the  definition  of  the  term  municipal  affairs. 

Is  the  Exercise  of  the  Police  Power  a  Municipal  Affair  ? 

Attention  will  be  directed  in  the  next  chapter  to  the  unusual 
provision  of  the  California  constitution  on  the  subject  of  the  police 
power  and  to  the  construction  which  the  courts  have  placed  upon 
this  provision.  At  this  point  we  are  concerned  only  with  the  order 
of  precedence  as  between  state  laws  and  charter  provisions  enacted 
in  pursuance  of  the  police  power  as  affected  by  the  "  municipal 
affairs"  amendment  of  the  constitution. 

In  the  early  case  of  Ex  Parte  Hong  Shen,1  decided  before  the 
amendment  of  1896,  the  court  avoided  determining  whether  a 
police  ordinance  of  San  Francisco  regulating  the  sale  of  opium  was 
controlled  by  a  general  law  of  the  state  upon  the  same  subject  by 
finding  that  no  actual  conflict  existed  between  the  two. 

In  the  case  of  In  re  Hoffman,2  decided  after  the  amendment,  a 
somewhat  similar  question  was  presented  for  consideration.  An 
ordinance  of  Los  Angeles  fixed  the  standard  of  milk  that  might  be 
sold  in  the  city.  The  legislature  had  by  general  law  fixed  a  dif- 
ferent and  lower  standard.  And  although  the  court  held  that  the 
municipal  ordinance  was  not  in  conflict  with  the  law,  since  it  merely 
added  to  the  standard  fixed  by  the  state,  it  was  nevertheless  ex- 
pressly declared  that  "  undoubtedly  if  such  a  conflict  exists,  the 
ordinance  must  give  way  to  the  paramount  law  of  the  state." 
This  was  obviously  dictum ;  but  it  must  be  taken  as  expressing 
the  view  that  a  city  under  a  freeholders'  charter  might  not  exercise 

torney  General  v.  Covington,  29  Oh.  St.  102  (1876)  ;  State  ex  rel.  Holt  v.  Denny, 
118  Ind.  449  (1888)  ;  State  ex  rel.  Atwood  v.  Hunter,  38  Kas.  578  (1888) ;  Com- 
monwealth v.  Plaisted,  148  Mass.  375  (1888)  ;  Burch  v.  Hardwicke,  30  Gratt.  (Va.) 
24  (1878) ;  State  ex  rel.  Attorney  General  v.  Moores,  55  Neb.  480  (1898),  overruled 
but  not  as  to  this  point  by  Redell  v.  Moores,  63  Neb.  219  (1901)  ;  Newport  v. 
Horton,  22  R.  I.  196  (1900).  But  see  also  People  ex  rel.  Wood  v.  Draper,  15  N.  Y. 
532  (1857) ;  supra,  36. 

1  98  Cal.  681.     1893.  '  155  Cal.  114.     1909. 


CONFLICT  WITH  STATE   LAWS  IN  CALIFORNIA      257 

its  police  power  in  such  a  manner  as  to  contravene  a  policy  estab- 
lished by  the  state  in  its  exercise  of  a  similar  power.  This  was 
merely  to  declare  the  usual  rule  applied  in  cases  of  conflict  between 
state  police  laws  and  municipal  police  ordinances  touching  the 
same  subject.  It  was  to  say  that  home  rule  cities  stood  in  the 
same  relation  to  such  laws  as  cities  under  legislative  charters, 
which  cities  with  practical  universality  exercise  concurrent  police 
powers  with  the  state.1 

7s  the  Regulation  of  Matters  pertaining  to  Prosecutions  for  the 
Violation  of  Municipal  Charters  and  Ordinances  a  Municipal 
Affair? 

In  Fleming  v.  Hance,2  a  case  which  will  be  noticed  again  at  a 
later  point  in  our  discussion,3  one  of  the  questions  considered  was 
whether  the  regulation  of  matters  pertaining  to  prosecutions  for 
violations  of  municipal  ordinances  was  or  was  not  a  municipal 
affair.  Although  the  consideration  given  to  this  question  may  per- 
haps be  regarded  as  having  been  somewhat  collateral  to  tHe  prin- 
cipal points  decided  by  the  case,  the  views  expressed  by  the  court 
upon  this  matter  are  nevertheless  of  considerable  importance. 

It  will  be  recalled  that  in  the  case  of  the  People  v.  Toal 4  it  was 
held  that  the  original  provisions  of  the  freeholders'  charter  of  Los 
Angeles  establishing  a  police  court  were  inoperative.  Following 
this  decision  the  legislature  in  1901  enacted  a  law  creating  a  police 
court  for  cities  of  "  class  one  and  a  half,"  which  class  embraced 
only  Los  Angeles,  and  providing  for  the  office  of  prosecuting  attor- 
ney. In  1907  this  act  was  amended  so  as  to  increase  the  number 
of  such  attorneys  from  two  to  four  and  to  raise  their  salaries.  The 
contention  was  made  that  the  act  of  1901  as  amended  in  1907 
was  void  because  it  attempted  after  1896  to  regulate  a  municipal 
affair.  This  contention,  however,  was  premised  not  so  much  upon 
the  view  that  a  police  court  was  inherently  a  municipal  affair  as 

1  Supra,  138  ff.     See  also  infra,  294,  in  respect  to  the  relation  between  state  laws 
and  municipal  ordinances  regulating  matters  pertaining  to  public  health. 
*  153  Cal.  162.     1908.  3  Infra,  383.  *  Supra,  206. 


258     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

upon  the  ground  that  the  matter  of  police  courts  had  been  trans- 
formed into  a  municipal  affair  by  reason  of  another  specific  amend- 
ment adopted  in  1896  to  which  attention  will  be  directed  a  little 
later.1 

In  addition  to  this  contention  it  was  urged  against  the  amending 
statute  of  1907  that  in  any  event  prosecuting  attorneys  were  not 
a  "  part "  of  police  courts  and  that  the  regulation  of  matters  pertain- 
ing to  such  officers  was  certainly  a  municipal  affair.  The  court 
sustained  the  proposition  that  prosecuting  attorneys  were  not  a 
part  of  the  police  court.  The  state  law  required  these  attorneys 
to  attend  all  sessions  of  the  police  court  and  to  conduct  all  mis- 
demeanor and  felony  prosecutions  arising  under  state  laws,  but 
they  were  under  no  obligation  to  conduct  prosecutions  arising  under 
the  municipal  charter  and  ordinances  except  "when  requested  by 
the  city  attorney."  It  was  held  that  the  prosecution  for  offenses 
against  the  state  laws  was  a  state  and  not  a  municipal  duty.  As  to 
the  other  class  of  prosecutions,  the  court  declared  : 

The  qualified  duty  of  prosecuting  for  violations  of  the  charter  or  city 
ordinances  imposed  upon  the  prosecuting  attorneys  by  the  act  in  question 
presents  a  different  question.  It  may  well  be  said  that  prosecutions  of 
this  character,  i.e.,  for  offenses  which  are  punishable  solely  by  reason  of  the 
organic  act  or  the  legislative  action  of  the  city  itself,  may  properly  be 
regarded  as  included  within  the  functions  of  the  city.  But  the  city  has, 
in  its  charter,  assumed  and  provided  for  this  duty.  By  section  49  of  the 
Los  Angeles  charter  (Stats.  1889,  p.  472),  it  is  made  "the  duty  of  the  city 
attorney  to  prosecute  in  behalf  of  the  people  all  criminal  cases  arising  upon 
violations  of  the  provisions  of  this  charter  and  city  ordinances."  If  the 
prosecution  of  such  offenses  is  a  part  of  the  duty  of  the  city,  —  in  other 
words,  if  it  is  a  "municipal  affair,"  this  provision  of  the  charter  must  con- 
trol as  against  an  act  of  the  legislature,  by  reason  of  the  constitutional 
amendment  exempting  charters  from  legislative  control  in  municipal  affairs. 
(Const.,  Art.  XI,  sec.  6.)  The  two  provisions,  that  of  the  charter  and 
that  of  the  statute,  are  necessarily  inconsistent  and  cannot  both  be  oper- 
ative. If  the  city  attorney  is  to  prosecute  all  cases  of  this  character,  none 
can  remain  which  are  to  be  conducted  by  the  prosecuting  attorneys.2 

1  Infra,  Ch.  XI. 

2  The  real  constitutional  point  at  issue  here  was  as  to  the  competence  of  the  legis- 
lature to  compel  a  city  to  incur  a  debt  for  a  state  purpose  —  a  question  that  arose 
out  of  the  construction  of  Art.  XI,  sec.  12  of  the  constitution.     See  supra,  52.     It 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      259 

The  opinion  thus  expressed  necessitates  little  comment.  It 
manifestly  sustains  the  notion  that  the  regulation  of  all  matters 
pertaining  to  prosecutions  for  offenses  committed  in  violation  of  a 
freeholders'  charter  or  ordinances  is  a  municipal  affair. 

Are  Matters  pertaining  to  the  Election  of  City  Officers  Municipal 

Affairs? 

In  the  very  first  case  decided  under  the  home  rule  provisions  of 
the  California  constitution  of  1879  —  the  case  of  the  People  v. 
Hoge l  —  the  contention  was  made  that  the  board  of  election  com- 
missioners of  San  Francisco,  established  under  the  consolidation 
act  of  1856,  had  no  authority  to  call  the  election  of  a  board  of  free- 
holders to  frame  a  charter.  It  was  urged  that  legislation  was 
necessary  before  such  an  election  could  be  called.  Denying  this 
contention,  the  court  declared : 

It  is  argued  in  the  first  place  that  the  power  to  call  the  election  resided 
in  the  Board  of  Supervisors,  and  the  point  is  also  taken,  that  action  on  the 
part  of  the  Legislature  was  essential  to  enforce  and  give  effect  to  the  pro- 
vision of  the  Constitution.  The  first  point  has  already  been  disposed  of 
and  the  second  is  not,  in  our  opinion,  well  taken.  Legislative  action  was 
not  necessary  to  enable  the  inhabitants  of  the  City  and  County  of  San 
Francisco  to  act,  under  sec.  8,  Art.  XI,  of  the  Constitution,  in  the  matter 
of  framing  a  charter.  The  Constitution  nowhere  provides  either  expressly 
or  by  implication  for  such  legislative  interference,  and  the  construction 
placed  upon  the  provision  of  the  Constitution  under  discussion  might  result 
in  entirely  defeating  its  operation.  If  this  ground  can  be  sustained,  it  would 
result  that  hostile  action,  or  even  non-action  on  the  part  of  the  Legislature, 
would  prevent  the  inhabitants  of  the  city  from  exercising  a  power  expressly 
given  to  them  in  clear  and  unmistakable  language  by  the  Constitution. 
It  was  manifestly  the  intention  of  sees.  8,  13,  and  14,  Art.  XI,  as  well  as 
of  sec.  25,  Art.  IV,  of  the  Constitution,  to  emancipate  municipal  govern- 
ments from  the  authority  and  control  formerly  exercised  over  them  by  the 
Legislature. 

was  held,  relying  upon  Conlin  v.  Board  of  Supervisors,  114  Cal.,  404  (1896),  a  case 
which  as  to  its  pertinent  parts  appears  to  have  been  not  very  directly  in  point,  that 
the  legislature  had  no  such  power.  The  part  of  the  opinion  quoted  above  was  read 
in  support  of  the  view  that  the  prosecuting  attorneys  could  not  perform  any  municipal 
function  and  hence  their  salaries  could  not  be  made  a  charge  upon  the  municipal 
treasury.  J  55  Cal.  612.  1880. 


260     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Here  then  at  an  early  date  was  a  very  broad  assertion  of  the  com- 
petence of  a  city  to  proceed  to  the  election  of  a  board  of  freeholders 
without  waiting  for  the  legislature  to  fix  any  of  the  details  for  the 
conduct  of  such  election.  Indeed  it  was  clearly  intimated  that  the 
legislature  enjoyed  no  power  whatever  to  regulate  these  details.  As 
an  abstract  proposition  this  liberality  of  view  toward  the  constitu- 
tional grant  of  the  power  of  home  rule  was  doubtless  to  be  com- 
mended. It  is  evident,  however,  that  the  court  did  not  take  into 
consideration  the  possible  difficulties  to  which  it  might  give  rise. 

The  constitution  declared  that  the  "city"  might  exercise  this 
power  "  by  causing  a  board  of  fifteen  freeholders  .  .  .  to  be  elected 
...  at  a  general  or  special  election."  This  was  obviously  some- 
what vague  and  indefinite.  A  "city"  can  act  .only  through  officers 
who  find  the  source  of  their  definite  authorities  in  the  charter  or  law. 
It  is  conceivable,  of  course,  that  under  the  terms  of  this  or  that 
city  charter  power  over  the  initiation  and  conduct  of  all  elections 
might  be  conferred  in  such  general  terms  that  there  would  be  no 
question  as  to  the  competence  of  some  particular  agency  of  the 
city  government  to  control  the  election  of  freeholders.  But  it  is 
also  conceivable  that  the  terms  of  the  charter  might  be  such  as  to 
create  grave  doubts  in  respect  to  this  matter.  Let  us  suppose, 
for  example,  that  the  charter  merely  conferred  power  upon  a  mu- 
nicipal board  of  election  commissioners  to  control  the  conduct  of 
charter  elections  and  no  others.  In  such  a  city  would  the  power 
to  initiate  an  election  of  freeholders  belong  to  the  board  or  to  the 
city  council?  Who  would  determine  whether  freeholders  should 
be  elected  at  a  general  or  a  special  election?  And  even  if  it  be 
granted  that  under  these  circumstances  the  council,  as  the  primary 
legislative  organ  of  the  city,  was  on  "general  principles"  the  proper 
agency  of  the  city  in  this  matter,1  would  it  be  held  that,  having 

1  On  this  point  see  the  declaration  that  was  made  arguendo  in  Blanchard  v.  Hart- 
well,  131  Cal.  263  (1901) ;  supra,  221.  It  was  there  said  :  "The  constitution  pro- 
vides that  the  city  shall  cause  the  election  to  be  held.  The  city  can  only  act  through 
its  legislature."  This  was  obviously  in  contradiction  of  the  rule  laid  down  in  the 
Hoge  case,  where  action  by  the  election  commissioners  in  calling  an  election  of  free- 
holders was  sustained.  Likewise  it  is  absurd  to  declare  broadly  that  a  city,  which 
in  fact  acts  through  numerous  agencies,  "  can  only  act  through  its  legislature." 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     261 

decided,  let  us  say,  to  hold  a  special  election,  this  council  could, 
without  any  direct  grant  of  authority  either  from  the  legislature 
or  the  people  of  the  city,  establish  a  complete  election  machinery 
for  the  purpose  ?  Could  it  prescribe  the  form  of  ballots  to  be  used, 
determining,  for  instance,  whether  party  designations  should  or 
should  not  be  recognized  ?  Could  it  provide  for  nominations  in  any 
manner  that  it  chose  —  by  convention,  by  direct  primary,  or  by 
petition?  Could  it  introduce  a  system  of  preferential  voting  or 
proportional  representation?  Could  it  prescribe  a  special  scheme 
for  the  registration  of  voters? 

If  such  questions,  and  many  others  of  similar  character  that 
might  be  put,  were  answered  in  the  affirmative,  it  is  certainly  plain 
that  the  council  would  be  vested  with  very  large  powers  in  the  prem- 
ises under  a  rather  remote  implication  from  the  constitutional 
authority  conferred  upon  the  "city"  to  "cause"  an  election. 
The  truth  of  the  matter  is  that,  taken  in  conjunction  with  the  highly 
various  provisions  that  were  doubtless  to  be  found  in  the  several 
municipal  charters  of  the  state  on  the  subject  of  elections,  this 
constitutional  right  of  the  city  to  cause  an  election  to  be  held 
was  patently  vague  and  uncertain.  It  might  easily  be  that 
without  supplementary  legislation  a  particular  city  would  find 
itself  powerless  to  exercise  the  right  conferred  or  confronted 
with  numerous  doubts  as  to  the  location  and  the  scope  of  its 
competence. 

The  possible  difficulties  that  inhered  in  the  doctrine  and  impli- 
cations of  the  Hoge  case  were  only  aggravated  by  the  adoption  of 
the  "municipal  affairs"  amendment.  Prior  to  that  amendment 
the  legislature  might  certainly  have  enacted  "general"  laws  on 
the  subject  of  elections  (if  necessary  without  specific  reference  to 
the  election  of  freeholders)  which  would  have  so  amended  existing 
legislative  charters  as  to  make  the  "causing"  of  an  election  every- 
where possible.  But  if  municipal  elections  generally  and  the  elec- 
tions  of  boards  of  freeholders  in  particular  were  municipal  affairs 
the  legislature  under  a  literal  interpretation  of  the  constitution 
was  after  1896  powerless  to  enact  a  law  upon  this  subject  which 
"cities"  would  be  subject  to  and  controlled  by. 


262     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

This  whole  complicated  problem  was  presented  to  the  court  for 
solution  in  the  case  of  Fragley  v.  Phelan.1  In  this  case  all  of  the 
members  of  the  court  concurred  in  the  judgment  that  was  rendered 
—  a  judgment  that  refused  the  application  for  a  writ  of  injunction  to 
restrain  the  election  commissioners  of  San  Francisco  from  incurring 
expenditures  for  conducting  in  November,  1899,  the  election  which 
was  destined  to  effectuate  at  length  the  first  freeholders'  charter 
of  the  metropolitan  city  of  the  state.  But  since  the  judges  arrived 
at  the  judgment  by  wholly  different  courses  of  reasoning  it  is 
necessary  to  detail  here  the  somewhat  complicated  statutory  situa- 
tion that  was  involved. 

A  special  act  of  March,  1878,  regulated  the  matter  of  elections 
hi  the  "city  and  county"  of  San  Francisco.  In  1889  the  legisla- 
ture passed  certain  general  laws  regulating  the  matter  of  elections 
in  all  cities  and  counties.  These  laws,  which  all  charter  provisions 
were  at  that  date  "subject  to  and  controlled  by,"  naturally  had 
operation  in  San  Francisco.  In  1897  there  was  enacted  a  general 
"charter  election  law,"  which  regulated  the  conduct  of  elections 
in  cities  at  which  boards  of  freeholders  might  be  chosen  as  well  as 
elections  at  which  charters  or  amendments  might  be  submitted 
for  popular  acceptance  or  refusal. 

It  was  contended  by  the  taxpayer,  Fragley,  who  brought  this 
action,  that  the  election  of  the  board  which  drafted  the  charter 
of  San  Francisco  was  conducted  under  this  law  of  1897,  and  that 
such  election  was  in  consequence  void  because  the  law  in  question 
was  a  general  law  regulating  a  municipal  affair.  Answering  this 
contention  in  the  negative,  Judge  Garoutte,  with  whom  two  other 
judges  concurred,  emphatically  held  that  the  law  of  1897  was  not 
a  law  which  regulated  a  municipal  affair.  He  said : 

Municipal  affairs,  as  those  words  are  used  in  the  organic  law,  refer  to 
the  internal  business  affairs  of  a  municipality.  .  .  .  There  is  no  sound 
reason  why  freeholders'  charters  should  not  be  framed  and  ratified  under 
general  laws.  There  are  a  multitude  of  sound  reasons  to  be  urged  why  the 
conduct  and  procedure  of  elections  for  the  election  of  freeholders  and  rati- 
fication of  charters  should  be  held  under  general  laws.  .  .  . 

1  126  Cal.  383  (1899) ;  supra,  209. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      263 

The  city  and  county  of  San  Francisco  is  a  municipality.  The  municipal 
affairs  of  this  municipality  are  a  multitude,  covering  its  business  transac- 
tions. These  business  matters  are  the  municipal  affairs  of  the  present  mu- 
nicipality, but  the  drafting  and  ratification  of  a  new  charter  is  not  one  of 
its  business  matters.  ...  A  municipal  affair  pertains  to  something 
which  may  be  done  by  the  municipality.  The  creation  of  a  new  charter 
is  a  matter  not  placed  in  the  hands  of  the  municipality,  but  in  the  hands  of 
the  inhabitants  thereof  with  the  consent  of  the  state.  .  .  . 

Viewing  the  question  from  another  angle,  it  seems  that  the  creation  of 
a  charter  is  not  essentially  and  alone  a  municipal  affair.  It  is  a  state 
affair,  and  that  fact  is  recognized  in  unmistakable  terms  by  the  state 
when  the  constitution  demands  that  the  state  legislature  approve  the  in- 
strument by  a  majority  vote ;  and  until  such  approval  it  has  no  life. 

Judge  Harrison,  with  whom  also  two  other  judges  concurred, 
held  that  under  the  special  act  of  1878  and  the  general  laws  of 
1889  the  election  commissioners  had  the  power  to  do  all  the  things 
which  they  purported  to  do  under  the  act  of  1897  and  that  it  was 
in  consequence  unnecessary  to  consider  whether  the  latter  statute, 
enacted  since  the  " municipal  affairs"  amendment,  was  or  was  not 
valid  legislation.  Since,  however,  as  we  shall  see  a  little  later,1 
it  had  not  been  decided  that  the  amendment  in  question  was  not 
retrospective  in  operation  —  for  if  it  was  retrospective  it  would 
operate  to  suspend  the  application  of  previously  enacted  general 
laws  relating  to  municipal  affairs  —  it  was  necessary  for  him  either 
to  declare  that  the  amendment  was  not  retrospective  or  to  decide 
the  question  whether  the  general  election  laws  of  1889  were  appli- 
cable to  elections  in  San  Francisco.  Determination  of  the  first 
point  he  avoided ;  and  upon  the  latter  he  equivocated.  He  said  : 

The  municipal  affairs  of  any  individual  municipal  corporation  are,  there- 
fore, such  affairs  only  as  that  municipality  has  the  power  to  engage  in  or 
perform,  and  the  municipal  affairs  of  one  city  may  vary  greatly  from  those 
of  any  other  city  —  and  this,  too,  whether  the  charter  of  the  city  has  been 
conferred  upon  it  by  the  legislature  or  has  been  framed  by  a  board  of 
freeholders  of  its  own  choice,  and  afterward  adopted  by  its  citizens  and 
approved  by  the  legislature.  In  either  case,  the  municipality  can  exercise 
only  the  powers  found  in  its  charter.  ...  A  city  cannot  claim  to  be  ex- 
empt from  general  laws  relating  to  municipal  affairs  if  there  is  no  provision 

1  Infra,  271  ff. 


264     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

relating  to  such  affairs  in  the  charter  under  which  it  is  acting,  whether 
such  charter  is  one  framed  by  itself  or  was  given  to  it  by  the  legislature. 
If  in  framing  its  charter,  its  board  of  freeholders  should  make  no  provision 
for  a  public  library,  or  for  the  improvement  of  its  streets,  the  general  laws 
upon  those  subjects  would  be  operative  within  that  city.  It  is  not  within 
the  constitutional  power  of  the  legislature,  by  approving  a  freeholders' 
charter  which  fails  to  make  provision  upon  subjects  pertaining  to  municipal 
affairs,  to  exempt  that  city  from  being  subject  to  legislative  control  in 
reference  to  those  subjects,  nor  can  the  city  secure  exemption  from  such 
control  by  omitting  to  make  such  provision  in  its  charter.  If,  by  adopting 
a  charter  which  failed  to  give  it  power  to  act  upon  affairs  which  are  prop- 
erly municipal,  a  city  could  be  freed  from  any  legislative  control  in  refer- 
ence to  those  affairs,  either  by  itself  or  by  the  legislature,  that  city  would 
become  a  veritable  Alsatia.  .  .  . 

It  may  be  conceded  that  each  of  the  elections  herein  considered,  as  well 
as  the  creation  or  consolidation  of  the  precincts  at  which  the  elections 
were  held,  is  a  "municipal  affair,"  but,  as  since  the  amendment  to  the 
Political  Code  of  1889  there  has  been  no  provision  in  the  charter  of  San 
Francisco  relating  to  the  creation  and  consolidation  of  election  precincts, 
the  city  was  subject  to  and  controlled  by  the  general  laws  existing  in  ref- 
erence thereto. 

In  other  words,  it  was  the  view  of  this  learned  judge  and  his 
concurring  colleagues  that  the  term  "municipal  affairs"  varied  in 
its  content  according  to  whether  this  or  that  affair  was  or  was  not 
regulated  by  a  particular  charter.  If  regulated  by  charter,  it 
was  beyond  the  power  of  the  legislature  to  control  by  general  law. 
If  not  so  regulated,  it  was  within  such  legislative  power.  This  may 
have  been  an  intelligent  determination  of  what  the  constitution 
should  have  declared ;  but  it  will  be  recalled  that  the  provision  in 
question  did  in  fact  ordain  that  "cities  and  towns  heretofore  or 
hereafter  organized,  and  all  charters  thereof  framed  or  adopted  by 
authority  of  this  constitution,  except  in  municipal  affairs,  shall  be 
subject  to  and  controlled  by  general  laws."  It  was,  therefore, 
not  only  "charters"  but  also  "cities"  which  were  to  be  exempt 
from  the  control  of  general  laws  in  municipal  affairs.  San  Fran- 
cisco was  certainly  a  city  "heretofore  organized."  As  such  the 
provision  asserted  that  it  was  "subject  to  and  controlled  by  general 
laws,  except  in  municipal  affairs."  In  the  view  expressed  by 
Judge  Harrison  the  election  in  question  was  conceded  to  be  a 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     265 

municipal  affair.  It  is  not  easy  to  see,  therefore,  why  San  Fran- 
cisco was  subject  to  control  in  this  affair  by  a  general  law,  even 
though  its  charter  failed  to  regulate  the  affair.  It  may  be  argued 
that  unless  a  majority  of  the  court  had  been  prepared  to  accept 
the  view  of  Judge  Garoutte  and  his  concurring  associates  — -  which 
was  certainly  under  the  circumstances  the  more  logical  view  to  have 
taken  —  San  Francisco,  because  of  the  silence  of  its  charter  in  re- 
spect to  the  conduct  of  elections,  would  have  been  without  any 
available  means  of  securing  a  freeholders'  charter.  This  may  have 
been  true.  But  if  so,  the  fault  lay  in  the  peculiarly  unhappy 
phraseology  of  the  constitution  as  amended  in  1896.  It  could 
not  be  laid  at  the  door  of  the  court. 

Judge  Temple,  who  was  unsupported  by  any  of  his  colleagues, 
seems  to  have  appreciated  the  absurdity  of  declaring,  in  the  face  of 
the  two  categories  clearly  sought  to  be  created  by  the  amendment, 
that  an  affair  became  municipal  simply  because  of  its  regulation 
by  charter  provision.  "The  word  ' affairs,'"  he  said,  "would  in- 
clude all  possible  laws.  Municipal  means  pertaining  to  a  munici- 
pality. It  is  not  permitted  to  construe  unambiguous  language." 
And  he  added  that  "if  the  legislature  may  still  control  such  char- 
ters by  general  laws  in  regard  to  matters  not  expressly  provided  for, 
a  wide  margin  of  uncertainty  is  still  left  and  a  charter  by  such 
laws  may  yet  be  made."  He  reached  his  conclusion  against  the 
granting  of  the  injunction  sought  upon  the  view  that  it  was  the 
business  of  the  legislature,  since  "the  whole  proceeding  was  govern- 
mental and  political,"  to  determine  at  the  time  when  it  approved 
the  charter  whether  the  elections  had  been  properly  held.  As  we 
have  previously  had  occasion  to  note,  this  view,  early  urged  upon 
the  court,  had  been  categorically  rejected ; l  and  from  its  original 
attitude  upon  this  point  a  majority  of  the  court  has  never 
swerved. 

The  decision  of  the  Fragley  case  left  the  law  as  to  whether  the 
election  of  a  board  of  freeholders  is  or  is  not  a  municipal  affair  in 
a  state  of  uncertainty  which  has  never  been  resolved.  While 
this  case  involved  the  question  of  the  validity  of  a  state  law  gov- 

1  Supra,  209. 


266     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

erning  the  election  of  freeholders  as  applied  to  a  city  then  operating 
under  a  special  legislative  charter,  yet  owing  to  the  peculiar  word- 
ing of  the  constitution  by  which  all  cities,  whether  home  rule  or 
otherwise,  were  exempted  from  the  control  of  general  laws  dealing 
with  municipal  affairs,  the  question  presented  in  the  case  would 
have  differed  in  no  wise  had  it  arisen  in  respect  to  a  city  then  oper- 
ating under  a  freeholders'  charter.  This  fact  is  of  especial  sig- 
nificance in  connection  with  the  subject  of  the  election  of  free- 
holders. Naturally  a  legislative  charter  antedating  the  adoption  of 
the  constitution  of  1879  would  contain  no  reference  to  such  elec- 
tions. If  the  control  of  the  elections  was  a  municipal  affair  which 
could  not  be  regulated  by  general  law,  it  might  well  happen,  as  has 
already  been  remarked,  that  a  city  under  such  a  charter  would 
find  itself  forever  debarred  from  proceeding  to  frame  a  charter,  its 
existing  charter  being  insufficient  and  the  legislature  being  power- 
less to  come  to  its  assistance.  Not  so,  however,  with  a  city  which 
was  operating  under  a  charter  of  its  own  making  and  desired  to 
frame  a  new  charter.  For  there  would  be  nothing  to  prevent  such 
a  city  from  incorporating  into  its  first  freeholders'  charter  and  in 
every  successive  charter  provisions  regulating  the  manner  in  which 
future  boards  of  freeholders  might  be  elected,  in  much  the  same 
way  that  a  state  constitution  commonly  provides  the  means  by 
which  a  subsequent  constitution  may  be  initiated.  Indeed  there 
would  be  every  reason  why  the  charter  should  make  such  provision, 
for  if  it  failed  to  do  so  and  if  a  state  law  could  not  apply,  the  city 
in  adopting  the  charter  would  be  stupidly  closing  the  door  upon  its 
own  competence  to  frame  complete  charters  for  the  future.  This 
could  not  be  done  with  respect  to  the  power  to  make  amendments, 
for  the  power  of  the  city  in  this  regard  was  regulated  in  sufficient 
detail  by  the  constitution;  but  it  could  easily  be  accomplished 
either  by  accidental  or  designed  omission  with  respect  to  the  power 
of  complete  revision  through  the  medium  of  a  new  board  of  free- 
holders. 

In  plain  point  of  fact  an  examination  of  the  home  rule  charters 
of  California  discloses  that  they  do  not  contain  provisions  govern- 
ing the  future  election  of  boards  of  freeholders.  It  has  evidently 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      267 

been  concluded,  therefore,  that  the  Fragley  case,  in  judgment  if  not 
in  opinion,  settled  the  question  of  the  supremacy  of  the  state  law 
upon  this  subject  and  overturned  the  broad  doctrine  announced  in 
the  case  of  the  People  v.  Hoge.  In  practice  the  elections  of  boards  of 
freeholders  by  the  cities  of  the  state  have  been  conducted  under  the 
provisions  of  the  general  law.  However,  under  the  constitutional 
provision  as  amended  in  1911  and  1914  the  modes  of  initiating  an 
election  of  freeholders  are  specified  and  the  competence  of  cities 
to  regulate  by  their  charters  the  method  of  nominating  candidates 
for  freeholders  is  expressly  recognized.1 

The  question  as  to  the  order  of  supremacy  between  state  laws  and 
charter  provisions  regulating  the  matter  of  elections  provided  for 
under  the  terms  of  a  freeholders'  charter  has  never  been  directly 
raised  in  California ; 2  but  such  a  question  was  raised  collaterally 
in  Socialist  Party  v.  Uhl,3  a  case  decided  as  recently  as  the  year 
1909.  In  1908  a  constitutional  amendment  was  adopted  which 
imposed  upon  the  legislature  the  duty  of  enacting  a  primary  elec- 
tion law.4  It  was  contended  by  the  Socialist  Party  that  the  law 
which  was  enacted  was  void  on  the  ground,  among  other  things, 
that  it  was  specifically  made  not  to  apply  "to  the  nomination  of 
officers  of  municipalities  whose  charters  provide  a  system  of  nomi- 
nating candidates  for  such  offices,"  whereas  they  regarded  the  con- 
stitutional amendment  as  requiring  that  the  primary  law  should 
apply  to  all  elections.  Declaring  that  there  was  no  virtue  in  this 
contention,  the  court  said : 

There  is  nothing  in  the  constitutional  provision  making  any  primary 
law  enacted  thereunder  applicable  in  charter  elections.  The  law  enacted 
under  the  constitutional  provision  stands,  as  far  as  municipalities  are  con- 
cerned, the  same  as  any  other  general  law  which,  under  the  constitution 
(Art.  XI,  sec.  6),  is  not  binding  upon  a  municipality  as  to  matters  which 
are  strictly  municipal  affairs.  That  the  election  of  municipal  officers  is 
strictly  a  municipal  affair  goes  without  question.  It  is  held  in  People  v. 
Hill,  125  Cal.  16,  that  city  charters  prevail  over  the  general  law  as  far  as 

1  Supra,  226-228. 

2  Certain  cases  involving  election  laws  were  decided  before  the  municipal  affairs 
amendment,  as  we  have  seen.     Supra,  233,  248. 

3  155  Cal.  776.     1909.  4  Art.  II,  sec.  2*. 


268     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

regulating  the  method  in  which  a  charter  election  shall  be  conducted.1 
If  section  2£  referred  to  a  charter  election  as  being  within  the  scope  of  any 
legislation  required  to  be  enacted  under  it,  there  would  be  no  room  for 
discussion  of  this  point.  All  the  constitutional  provision  requires,  how- 
ever, is  the  passage  of  a  general  law  relating  to  primary  elections.  As  far 
as  municipal  elections  are  concerned,  being  municipal  affairs,  it  cannot 
control  them.  Under  these  views  the  exception  of  municipalities  did  not 
render  the  act  unconstitutional  for  want  of  general  application  to  all 
elections. 

There  was  obviously  no  uncertainty  in  the  mind  of  the  court 
as  to  the  propriety  of  regarding  matters  relating  to  the  election 
of  municipal  officers  as  municipal  affairs.  It  may  be  said  in  this 
connection  that  there  has  probably  never  been  a  freeholders'  char- 
ter in  California  that  has  attempted  to  cover  in  full  all  matters 
respecting  the  conduct  of  municipal  elections.  As  every  one 
knows,  the  detailed  provisions  respecting  the  conduct  of  elections 
commonly  bulk  somewhat  large  upon  the  statute  books  of  the 
several  states.  It  would  be  wholly  unnecessary  for  every  charter 
to  contain  elaborate  provisions  in  regard  to  the  physical  character 
of  polling  booths,  the  manner  of  voting,  the  duties  of  election 
officers,  the  rights  of  challenge,  the  canvassing  of  returns,  and  in- 
numerable other  particulars  that  are  ordinarily  regulated  in  great 
detail  by  law.  The  usual  practice  in  freeholders'  charters  has 
been  to  cover  the  matter  of  elections  to  whatever  extent  has  been 
desired  and  then  by  a  blanket  clause  to  adopt  the  provisions  of  the 

1  [This  statement  of  the  doctrine  of  People  v.  Hill  is  wholly  misleading.  The 
case  did  not  raise  any  question  as  to  whether  elections  under  a  charter  were  or  were 
not  a  municipal  affair.  The  whole  question  decided  was  as  to  whether  the  section 
of  a  legislative  charter  of  Salinas  City  enacted  in  1876  which  adopted  the  general 
election  law  "as  far  as  practicable"  but  which  created  specific  exceptions  to  such 
law  as  to  certain  matters  was  controlled  by  this  general  law  as  to  these  exceptions. 
It  was  expressly  declared :  "The  decisions  rendered  in  Staude  v.  Election  Commis- 
sioners, 61  Cal.  313  ;  Thomason  v.  Ashworth,  73  Cal.  73  ;  People  v.  Henshaw,  76  Cal. 
436,  and  other  cases  cited,  have  no  bearing  whatever  upon  this  matter.  In  these 
cases  the  statutes  expressed  a  design  to  control  and  repeal  the  special  laws,  and  the 
only  questions  considered  were  as  to  the  power  of  the  legislature  to  pasg  such  laws 
—  not  as  to  the  construction  of  the  statutes.  Here  it  is  the  charter  which  makes  the 
general  law  applicable  so  far  as  it  is  so,  for  in  form  and  words  the  general  law  ex- 
cludes the  idea  that  it  has  any  application  to  the  charter  election."  The  contention 
that  was  made  in  the  case  was  in  fact  quite  absurd.! 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      269 

general  law  as  to  all  other  matters.1  As  will  be  seen  in  a  later 
connection,2  certain  powers  over  election  officers  were  specifically 
conferred  upon  home  rule  cities  by  another  amendment  adopted 
in  1896.  But  the  powers  of  regulation  thus  expressly  conferred 
were  not  very  extensive  when  viewed  in  comparison  with  the  sum 
total  of  regulations  that  are  commonly  prescribed  for  the  conduct 
of  elections. 


Is  the  Annexation  of  Territory  a  Municipal  Affair? 

In  the  People  ex  rel.  Cuff  v.  City  of  Oakland 3  the  city  had  in 
annexing  certain  territory  taken  action  under  a  general  state  law. 
This  law  empowered  the  city  council  to  rearrange  the  wards  of 
the  city  so  as  to  make  provision  for  the  annexed  area.  The  free- 
holders' charter,  however,  provided  for  the  redistricting  of  the  city 
into  wards  only  once  in  every  ten  years.  It  was  claimed  that  this 
was  a  municipal  affair  which  could  not  be  controlled  by  general 
laws.  Said  the  court : 

1  The  following  examples,  selected  at  random,  may  be  noted : 

"All  provisions  of  the  general  laws  of  this  state,  including  penal  laws,  respecting 
elections,  not  inconsistent  with  the  provisions  of  chapter  II  hereof,  shall  be  appli- 
cable to  all  elections  held  in  the  City  and  County  of  San  Francisco.  All  provisions 
of  the  general  laws  of  this  state  respecting  the  registration  of  voters  shall  be  appli- 
cable to  such  registration  in  the  City  and  County.  The  Board  of  Election  Commis- 
sioners must  provide  for  precinct  registration,  so  far  as  it  can  do  so  under  the  consti- 
tution and  laws  of  the  state."  1900  Charter  of  San  Francisco,  as  amended  to  1911, 
art.  XI,  ch.  I,  sec.  5. 

"All  elections  shall,  except  as  herein  otherwise  provided,  be  conducted  and  held 
in  accordance  with  the  provisions  of  the  laws  of  the  state  for  the  holding  of  general 
elections  in  effect  at  the  time."  1889  Charter  of  Los  Angeles,  Amendment  of  1909, 
sec.  202. 

"The  provisions  of  the  general  law  of  the  state  governing  municipal  elections, 
where  the  same  are  held  separate  from  state  elections,  are  hereby  adopted  as  the 
law  governing  city  elections."  1901  Charter  of  Pasadena,  art.  19,  sec.  3. 

"The  provisions  of  the  state  law  relating  to  the  qualifications  of  electors,  the 
manner  of  voting,  the  duties  of  election  officers,  the  canvassing  of  returns,  and  all 
other  particulars  in  respect  to  the  management  of  elections,  so  far  as  they  may  be 
applicable,  shall  govern  all  municipal  elections,  provided  that  the  Council  shall  meet 
as  a  canvassing  board  and  duly  canvass  the  election  returns  within  four  days  after 
any  municipal  election."  1909  Charter  of  Berkeley,  Art.  Ill,  sec.  6,  cl.  1. 

2  Infra,  371.  3  123  Cal.  598.     1899. 


270     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  [the  statute  in  question]  permits  territory  not  within  the  city  limits 
or  under  its  control  to  become  annexed  to  and  incorporated  into  the  city 
by  the  mutual  action  of  the  city  and  the  inhabitants  of  such  territory  — 
a  thing  that  could  not  be  accomplished  through  any  provision  of  the 
charter  of  the  city  of  Oakland,  or  otherwise  than  under  the  statutory 
authority  given  by  said  act ;  and  therefore  such  relation  as  said  act  has  to 
"municipal  affairs"  is  not  within  the  constitutional  exception.  It  does 
not  compel  action  contrary  to  the  provisions  of  the  city  charter,  but 
authorizes  action  at  the  pleasure  of  the  city,  which  could  not  otherwise  be 
taken.  As  the  legislature  alone  has  the  power  to  authorize  such  annexa- 
tion, it  must  have  the  power  to  prescribe  the  terms,  conditions,  and  mode 
of  annexation,  and  especially  to  provide  that  the  inhabitants  of  the  annexed 
territory  shall  not  be  deprived  of  any  constitutional  right. 

The  rule  here  laid  down  was  again  applied  in  the  case  of  the 
People  ex  rel.  Peck  v.  City  of  Los  Angeles,1  where  it  was  held  that 
a  state  law,  which  required  but  a  single  publication  of  an  election 
notice  on  a  question  of  annexing  territory,  controlled  a  charter 
provision  that  required  publication  of  such  notice  for  ten  days. 
"Annexation  of  territory  to  a  municipality"  was  "not  in  any  view 
a  municipal  affair."  "It  could  not  be  accomplished  under  any 
provision  of  the  charter  of  Los  Angeles,  but  solely  under  the  general 
law." 

In  these  cases  the  point  was  also  disposed  of  that  the  law  per- 
mitted the  city  to  amend  its  charter  in  a  manner  not  prescribed  by 
the  constitution.  It  will  be  recalled  that  a  similar  contention  was 
sustained  by  the  supreme  court  of  Missouri.2  Not  so  in  California. 
The  probable  view  of  the  court,  although  it  was  not  very  clearly  set 
forth,  was  that  while  the  city  in  attempting  to  amend  its  charter 
was  manifestly  bound  by  the  requirements  of  the  constitution, 
v  which  requirements  the  legislature  could  not  alter,  yet  a  general 
law  on  any  subject  of  state  concern  could  amend  a  contrary  charter 
provision.  The  statute  governing  the  procedure  for  annexation 
was  such  a  law.  It  is  true  that  it  was  permissive  merely  and  pro- 
vided for  the  initiation  and  effectuation  of  the  annexation  by  local 
action.  A  general  law  on  the  subject  would  of  practical  necessity 
be  of  such  a  character.  Not  only  the  voters  of  the  city  but  also 

1  164  Cal.  220.     1908.  *  Supra,  147. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     271 

certain  voters  outside  the  city  participated  in  this  local  action. 
The  charter,  therefore,  was  not  amended  by  the  city  alone.  It 
was  in  fact  amended  by  a  law  that  did  not  relate  to  a  municipal 
affair,  which  law  became  applicable  only  upon  a  contingency  in 
which  the  city  was  a  participant  but  not  the  only  participant. 

Whether  a  law  which  provided  that  a  city  might  annex  territory 
solely  by  its  own  action  —  that  is,  without  the  consent  of  the  people 
annexed  —  would  or  would  not  be  valid  does  not  appear.  Such  a 
law  might  obviously  confer  power  upon  a  city  to  amend  its  charter 
in  a  manner  contrary  to  the  requirements  of  the  constitution.  It 
would  seem  that  in  order  to  avoid  the  complicated  questions  that 
have  arisen  it  would  be  the  part  of  wisdom  for  the  legislature  to 
provide,  in  any  statute  regulating  the  procedure  for  the  annexation 
of  territory  to  cities  under  freeholders'  charters,  that  action  by  the 
city  should  be  taken  in  the  manner  required  by  the  constitution 
for  the  making  of  charter  amendments.  For  it  is  apparent  that 
there  is  here  much  room  for  legal  quibbles  as  well  as  for  honest 
differences  of  opinion. 

Is  the  Regulation  of  Matters  pertaining  to  Street  Improvements  a 
Municipal  Affair? 

In  the  year  1900  opinion  was  rendered  in  the  important  case  of 
Byrne  v.  Drain.1  This  case  arose  out  of  an  action  to  restrain  the 
superintendent  of  streets  of  Los  Angeles  from  selling  certain  prop- 
erty of  the  plaintiff's  to  satisfy  an  assessment  levied  in  the  matter 
of  opening  a  street. 

It  will  be  recalled  that  in  Davies  v.  Los  Angeles2  it  was  held 
that  the  municipal  authorities  acted  properly  in  proceeding  to 
make  a  street  opening  under  the  provisions  of  a  general  law  of  the 
state  enacted  in  1889  instead  of  under  the  provisions  regulating 
this  matter  which  were  contained  in  the  freeholders'  charter  that 
was  approved  by  the  legislature  a  few  weeks  before  the  passage  of 
the  general  law.  The  proceedings  under  which  Byrne's  property 
was  sought  to  be  sold  were  had  under  this  same  general  law.  They 

1  127  Cal.  663.     1900.  a  86  Cal.  37  (1890) ;  supra,  246. 


272     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

were  begun  in  September,  1898,  and  therefore  after  the  adoption 
of  the  " municipal  affairs"  amendment  of  1896.  The  contention 
was  made  that  this  amendment  operated  to  repeal  the  applicability 
of  the  general  law  and  to  reinstate  the  provisions  of  the  charter, 
and  that  the  proceedings  had  under  the  general  law  were  in  conse- 
quence void.  This  contention  the  court  sustained.  It  was  held 
that  the  charter  provisions  on  this  subject  were  valid  from  Janu- 
ary 31, 1889  (the  date  of  the  legislative  ratification  of  the  charter), 
to  March  6,  1889  (the  date  of  the  passage  of  the  general  law); 
that  this  law  did  not  repeal  the  provisions  of  the  charter  but  that 
such  provisions  merely  became  " subject  to  and  controlled  by" 
such  law  as  long  as  it  remained  in  force  —  in  other  words,  were 
"suspended."  The  question  was  clearly  presented  and  unequivo- 
cally decided  by  the  court  —  a  question  which  had  been  either 
dodged  or  overlooked  by  certain  members  of  the  court  in  the 
Fragley  case  l  —  that  the  amendment  of  1896  was  retrospective 
as  well  as  prospective  in  its  effect,  and  that  it  operated  to  lift  the 
"control"  of  any  general  law  relating  to  municipal  affairs  by  which 
the  force  of  any  charter  provision  had  been  "suspended." 

The  charter  of  Los  Angeles,  ratified  in  1889,  contained  provisions 
not  only  for  opening,  closing,  and  widening  streets  but  also  for 
making  other  street  improvements.  These  latter  provisions  had, 
however,  never  been  acted  upon  by  the  municipal  authorities,  who 
had  deferred  to  the  opinion  of  the  court  in  the  case  of  Thomason  v. 
Ashworth,2  where,  as  we  have  seen,  it  was  held  that  the  Vrooman 
Act  of  1885  regulating  the  matter  of  assessments  for  street  improve- 
ments in  "all  cities"  of  the  state  operated  to  supersede  the  provi- 
sions upon  this  subject  contained  in  any  municipal  charter.  After 
the  decision  of  Byrne  v.  Drain  it  is  not  surprising  that  the  municipal 
authorities  of  Los  Angeles  proceeded  to  ignore  this  general  act  and 
to  make  assessments  for  street  improvements  under  the  long  dor- 
mant provisions  of  the  freeholders'  charter,  upon  the  belief  that  the 
"municipal  affairs"  amendment  of  1896  had  operated  to  relieve 
the  charter  from  control  by  the  general  law.  But  this  belief  was 
rudely  shattered  by  the  court  in  the  case  of  Banaz  v.  Smith,3  where 

1  Supra,  262  ff.   »  73  Cal.  73  (1887) ;  supra,  237.    8  133  Cal.  102.  1901. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      273 

it  was  held   that  the  Vrooman  Act  was  still  effective  in  Los 
Angeles.     Said  the  court : 

If  [the  provisions  of  the  charter  were]  void  from  the  beginning,  the 
amendment  to  section  6  of  article  XI  of  the  constitution  did  not  give  life 
to  such  provisions.  That  would  give  the  amendment  the  effect  of  enacting 
laws,  instead  of  merely  authorizing  the  legislature  to  do  so,  and  it  would 
be  to  enact  a  law  to  which  no  reference  was  made,  and  which  the  people, 
in  adopting  the  amendment  could  not  have  had  in  mind.  Such  is  not  the 
ordinary  function  of  a  constitutional  provision,  and  such  effect  will  not 
be  given  to  it,  unless  it  is  expressly  so  provided. 

Byrne  v.  Drain,  127  Cal.  663,  was  a  case  where  the  charter  provisions, 
when  adopted,  were  perfectly  valid  and  immediately  went  into  operation. 
Subsequently,  a  general  law  was  passed  which  was  inconsistent  with  some 
provisions  found  in  the  charter.  As  to  that  the  constitution  provided  that 
all  such  charters  shall  be  subject  to  and  controlled  by  general  laws.  It 
was,  in  effect,  held  that  the  mere  fact  that  the  charter  provision  was  to  be 
subject  to  and  controlled  by  general  laws  implied  a  continued  existence,  and 
that  when  the  general  law  was  repealed  the  charter  was  in  force  and  uncon- 
trolled by  the  superior  law.  Here,  the  charter  provisions  being  void,  there 
was  nothing  held  under  control  which  could  be  restored  to  free  operation. 

This  opinion  was  reaffirmed  in  the  case  of  the  German  Savings  and 
Loan  Society  v.  Ramish.1  The  net  result  of  the  refined  distinction 
that  was  drawn  between  the  Byrne  case  and  the  Banaz  case  was  that 
the  declaration  by  the  court  as  to  the  retrospective  character  of 
the  municipal  affairs  amendment  was  robbed  of  much  of  its  force. 
The  amendment  operated  to  revive  only  those  provisions  of  mu- 
nicipal charters  which  had  once  been  effective  and  which,  although 
still  "on  paper,"  had  ceased  to  be  effective  by  reason  of  the  subse- 
quent enactment  of  a  controlling  general  law.  It  did  not  give  life 
to  provisions  which  from  the  beginning  had  been  ineffective  be- 
cause of  the  existence  of  controlling  general  laws  previously  enacted. 

The  argument  advanced  by  the  court  in  support  of  the  distinc- 
tion here  made  was  of  course  patently  defective.  In  the  Banaz 
case  it  was  asserted  that  charter  provisions  which  never  had  any 
force  were  "  void  from  the  beginning."  But  it  is  perfectly  manifest 

1  138  Cal.  120  (1902)  at  p.  131.  See  also  Carter  v.  Superior  Court,  138  Cal.  150 
(1902),  where  the  point  was  touched  upon  but  passed  over  as  being  unnecessary  to 
the  decision  of  the  case. 


274     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

that  such  provisions  were  no  more  void  than  were  provisions  which, 
having  once  been  operative,  became  inoperative  because  of  the 
later  enactment  of  a  controlling  general  law.  In  each  case  the 
clause  of  the  constitution  which  caused  the  supersedure  of  the  gen- 
eral law  was  that  which  declared  that  all  charters  should  be  "sub- 
ject to  and  controlled  by  general  laws."  In  the  Byrne  case  it  was 
held  that  this  clause  did  not  mean  that  the  conflicting  charter  pro- 
visions were  repealed  and  thus  made  void  but  merely  that  such  pro- 
visions were  suspended.  In  the  Banaz  case  it  was  in  effect  held 
that  this  same  clause  rendered  utterly  void  any  charter  provision 
which  from  the  beginning  was  found  to  be  in  conflict  with  a  general 
law  of  the  state.  How  could  it  be  asserted  in  one  case  that  "  sub- 
ject to  and  controlled  by"  did  not  mean  "to  repeal,  extinguish, 
and  do  away  with"  but  "implied  a  continued  existence"  in  a  state 
of  suspended  effectiveness,  while  in  the  other  case  the  same  words 
were  construed  to  render  charter  provisions  not  merely  ineffective 
but  wholly  void  ?  Why  in  the  latter  case  was  it  not  held  that  the 
charter  provisions  in  question,  which  were  merely  "subject  to  and 
controlled  by"  the  general  laws  in  existence  at  the  time  of  the 
enactment  of  the  charter,  were  fully  in  existence  but  were  "sus- 
pended" from  the  beginning?  Indeed  was  there  any  element  of 
logic  or  consistency  in  the  contrary  holding  of  the  court  ? 

It  is  impossible  to  say  whether  the  court,  in  drawing  the  super- 
finical  distinction  that  was  made,  was  or  was  not  hastening  to  de- 
stroy in  part  the  force  of  the  decision  in  the  Byrne  case  —  a  decision 
which  may  perhaps  have  been  made  without  full  appreciation  of  its 
far-reaching  effect.  Even  as  the  law  stood  after  the  distinction  was 
drawn  it  would  seem  that  the  amendment  of  1896  operated  not  only 
to  revive  the  provisions  of  freeholders'  charters  which  had  been 
suspended  by  general  laws  enacted  after  these  charters  went  into 
effect  but  also  to  relieve  such  cities  as  were  still  under  special  legis- 
lative charters  antedating  the  adoption  of  the  constitution  ot  1879 
from  the  control  of  any  and  every  general  law  which  was  applicable 
in  character,  which  had  been  enacted  since  1879,  and  which  regu- 
lated a  municipal  affair.  For  it  will  be  recalled  that  cities  under 
special  legislative  charters  were,  in  respect  to  their  being  "subject 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      275 

to  and  controlled  by  general  laws,"  placed  by  the  constitution  in 
precisely  the  same  category  as  cities  under  freeholders'  charters. 
In  the  same  way  also  they  enjoyed  the  benefit  of  the  " municipal 
affairs"  amendment.  Under  the  doctrine  of  the  Byrne  case,  there- 
fore, the  general  laws  which  since  1879  had  superseded  provisions 
of  their  special  charters  had  merely  "suspended"  such  provisions 
-  which  provisions,  "when  adopted,  were  perfectly  valid"  —  and 
since  the  effect  of  the  amendment  was  to  repeal  the  controlling 
force  of  these  general  laws,  the  formerly  valid  provisions  of  these 
special  legislative  charters  must  have  been  "restored  to  free  opera- 
tion." Although  this  seems  to  have  been  without  question  the 
law  of  California  as  it  stood  according  to  the  doctrine  of  the  Byrne 
case,  it  is  not  believed  that  in  practice  the  cities  operating  under 
special  legislative  charters  changed  their  governments  to  conform 
to  this  interpretation;  and  it  does  not  appear  that  the  question 
in  its  application  to  such  cities  was  ever  brought  before  the  courts. 
It  will  be  noted  that  in  the  above  discussion  of  the  retrospective 
or  prospective  operation  of  the  municipal  affairs  amendment, 
nothing  has  been  said  about  the  "inherent"  nature  of  the  control 
over  street  improvements  —  whether  such  control  was  or  was  not  a 
municipal  affair.  As  a  matter  of  fact  the  court  in  the  Byrne  case 
found  no  difficulty  whatever  with  this  point.  "That  the  matter 
of  opening  the  streets  of  a  municipality  is  a  municipal  affair,"  the 
opinion  recited,  "is  not  disputable  under  the  authorities."  It 
may  be  remarked  parenthetically,  however,  that  the  authorities 
cited  by  the  court  in  this  connection  were  not  specifically  in  point 
at  all.1 

1  Reference  was  made  to  Sinton  v.  Ashbury,  41  Cal.  525  (1871),  a  case  which 
decided  that  an  appropriation  made  for  a  street  improvement  "was  for  a  munici- 
pal" and  not  "for  a  purely  private  purpose."  The  case  really  involved  the  doctrine 
of  no  taxation  for  a  private  purpose,  the  term  "municipal"  being  employed  as 
synonymous  with  "public."  The  case  of  People  ex  rel.  Bryant  v.  Holladay,  93  Cal. 
241  (1892),  far  from  supporting  the  doctrine  in  question,  might  have  been  cited  in 
opposition  ;  for  it  was  expressly  declared  that  "  a  municipal  corporation  is  for  many 
purposes  but  a  department  of  the  state  organized  for  the  more  convenient  adminis- 
tration of  certain  powers  belonging  to  the  state,  .  .  .  and  such  corporations,  in 
their  management  and  control  over  streets  and  squares  .  .  .  exercise  a  part  of  the 
sovereignty  of  the  state."  In  other  words,  in  such  a  function  a  city  merely  acts 


276     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  is  a  well-known  rule  laid  down  in  many  branches  of  the  law  of 
municipal  corporations  that  the  streets  of  a  city  are  to  be  regarded 
merely  as  a  part  of  the  highways  of  the  state,  and  that  in  conse- 
quence the  city,  in  exercising  control  over  its  streets,  acts  merely 
as  the  agent  of  the  state.  This  is  a  rule  which  is  certainly 
open  to  serious  criticism ; 1  but  it  is  on  that  account  none  the  less 
a  widely  accepted  rule.  Nowhere  has  it  been  more  broadly  and 
emphatically  stated  than  by  the  supreme  court  of  California.  As 
late  as  1886  that  court,  in  a  case  2  which  did  not  concern  the  exer- 
cise of  home  rule  powers,  declared  : 

All  public  streets,  alleys,  and  roads  in  the  state  are  public  highways 
for  the  use  of  the  people  of  the  state.  The  state  in  its  sovereign  capacity 
has  the  original  right  to  control  them  for  the  public  use.  The  state  for 
this  purpose  has  the  right  to  grade  and  repair.  The  highways  within 
and  through  a  city  are  constructed  by  the  state  itself,  which  has  full  power 
to  provide  all  proper  regulations  of  police  to  govern  the  action  of  persons 
using  them,  and  to  make  from  time  to  time  such  alterations  in  these  ways 
as  the  proper  authorities  shall  deem  proper.  (Cooley,  Const.  Lim.  sec. 
588).  This  applies  equally  to  the  streets  and  alleys  of  a  city  or  village  as 
to  county  roads.  A  municipality  has  no  control  over  a  highway  unless  the 
right  of  control  has  been  vested  by  the  state  in  the  municipality. 

For  convenience,  this  power  of  the  state  is  frequently  vested  in  the 
municipality ;  but  unless  so  vested,  it  remains  in  the  state ;  when  so  vested, 
the  municipality  acts  as  the  agent  of  the  state. 

The  opinion  thus  spoken  was  not  adverted  to  in  the  Byrne  and 
the  Banaz  cases.  It  is  nevertheless  quite  impossible  to  reconcile 
the  easy  assertion  "that  the  matter  of  opening  the  streets  of  a 
municipality  is  a  municipal  affair"  with  the  equally  easy  declara- 
tion that  control  over  the  streets  is,  "for  convenience"  merely,  "fre- 
quently vested  in  the  municipality ; "  but  that  "unless  so  vested,  it 
remains  in  the  state,"  and  "when  so  vested,  the  municipality  acts 
as  the  agent  of  the  state." 

as  an  agency  of  the  state.  Hellman  v.  Shoulters,  114  Cal.  136  (1896),  the  only 
other  case  cited  by  the  court,  while  it  concerned  the  validity  of  a  law  governing 
the  matter  of  street  improvements,  does  not  appear  to  have  touched  even  by  indirec- 
tion upon  the  point  in  support  of  which  it  was  cited  as  an  "authority." 

1  Gbodnow,  Municipal  Home  Rule,  pp.  144-149,  228. 

8  Thomason  ».  Ruggles,  69  Cal.  465.     1886. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     277 

7s  the  Control  over  the  Sources  of  Municipal  Revenue  a  Municipal 

Affair? 

The  freeholders'  charter  of  Los  Angeles  conferred  power  upon  the 
city  council  to  impose  license  taxes  for  revenue  purposes.  In  1901 
the  legislature  added  a  new  section  to  the  Political  Code  which  pro- 
vided that  the  "boards  of  supervisors  of  the  counties  of  the  state, 
and  the  legislative  bodies  of  the  incorporated  cities  and  towns 
therein,  shall,  in  the  exercise  of  their  police  powers,  and  for  the  pur- 
pose of  regulation,  as  herein  provided,  and  not  otherwise,  have  power 
to  license  all  and  every  kind  of  business  not  prohibited  by  law." 
This  general  law  attempted  to  limit  the  power  of  all  municipalities 
in  the  state  to  imposing  license  taxes  solely  for  purposes  of  regula- 
tion and  to  prohibit  such  taxes  for  revenue.  In  the  case  of  Ex 
parte  Braun  1  the  question  was  raised  whether  this  law  related  to  a 
municipal  affair  and  was  as  such  inapplicable  to  Los  Angeles.  In 
upholding  the  contention  that  it  was  such  a  law,  the  court,  speak- 
ing through  Judge  Angellotti,  said  : 

The  power  of  cities  operating  under  freeholders'  charters  to  raise  money 
by  taxation  for  municipal  purposes  does  not  find  its  source  in  any  grant  by 
the  legislature.  There  is  no  enactment  of  the  legislature  purporting  to 
vest  such  authority  in  such  cities.  It  was  held  by  this  court  in  Security 
Savings  Bank,  etc.  Co.  v.  Hinton,  97  Cal.  214,2  where  the  question  was 
directly  involved  that  the  authority  given  by  the  Constitution  to  certain 
cities  to  frame  and  adopt  "  a  charter  for  its  own  government,"  which  "  shall 
become  the  organic  law  thereof  "  is  comprehensive  enough  to  authorize 
a  provision  such  as  that  contained  in  the  charter  of  the  city  of  Los  Angeles 
providing  for  taxation  for  municipal  purposes.  .  .  .  There  was  at  the  time 
of  the  adoption  of  the  charter  no  general  law  of  the  state  prohibiting  the 
imposition  of  a  license  tax  for  revenue,  and  the  same  constitutional  author- 
ity that  sanctioned  the  provision  for  a  property  tax  authorized  the  pro- 
visions for  the  revenue  license.  .  .  .  Those  provisions  when  legally 
incorporated  in  the  charter  constituted  a  grant  from  the  state  of  the 
power  to  impose  a  license  tax  for  revenue  purposes.  This  power,  being 
so  granted  by  the  state  to  the  municipality  for  municipal  purposes,  became 
a  "  municipal  affair  "  of  the  city  of  Los  Angeles  within  the  meaning  of 
those  words  as  used  in  the  Constitution,  and  the  legislature  was  without 
authority  to  withdraw  or  modify  such  power.  .  .  . 

i  141  Cal.  204.     1903.  2  [Infra,  340.] 


278     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Our  conclusions  are,  therefore,  that  the  power  to  collect  a  license 
tax  for  revenue  purposes  was  actually  conferred  upon  the  city  of  Los 
Angeles  for  municipal  purposes  by  the  charter  framed  for  its  government 
.  .  .  and  that  such  power  is  a  "municipal  affair"  within  the  meaning  of 
those  words  as  used  in  section  6  of  article  XI  of  the  constitution,  and 
cannot  be  withdrawn  or  abrogated  by  the  legislature.  Section  3366  of 
the  Political  Code  is  therefore  inapplicable  to  that  city. 

Here  was  no  picayune  view  of  the  meaning  of  the  term  "munici- 
pal affairs."  It  may  be  freely  admitted  that  the  power  of  taxation 
is  a  power  essential  to  the  very  existence  of  modern  municipal  cor- 
porations and  that  in  consequence  the  exercise  of  such  power  is 
manifestly  a  municipal  affair.  But  it  is  equally  manifest  that  the 
revenue  policy  and  system  of  the  state  as  such  might  be  seriously 
interfered  with  if  such  power  were  vested  in  its  various  subdivi- 
sions without  restriction.  Suppose,  for  example,  that  in  this  case 
the  state  had  decided  that  it  would  be  wise  to  leave  the  property 
tax  wholly  to  the  local  subdivisions  of  the  state  and  that  it  would 
establish  a  uniform  system  of  license  taxes  on  business  as  one  of  the 
sources  of  central  revenue.  This  policy  the  state  might  have  been 
effectually  prevented  from  carrying  out  because  of  the  existence  in 
a  single  city  of  the  state  of  high  license  taxes  of  this  character  — 
prevented  not  because  of  lack  of  legal  power  to  levy  additional 
license  taxes  but  because  of  the  knowledge  that  such  a  policy  of 
taxation  would  in  this  particular  city  be  unreasonably  onerous. 
In  other  words,  considering  the  limited  sources  of  public  revenues, 
it  is  perfectly  obvious  that  in  theory  as  well  as  in  constant  practice 
the  sources  of  central  state  revenue  are  and  ought  to  be  determined 
with  large  reference  to  the  established  sources  of  local  revenue. 
Complete  power  over  state  and  local  revenue  policies  cannot  be 
vested  respectively  in  central  and  local  governments  without  some 
risk,  for  the  reason  that  they  bear  so  intimate  a  relation  one  to  the 
other  that  in  many  aspects  of  the  matter  they  may  be  said  to  con- 
stitute a  single  and  indivisible  policy.  In  this  view,  then,  the  ques- 
tion of  what  sources  of  revenue  shall  be  available  to  the  municipali- 
ties of  a  state  is  clearly  a  state  rather  than  a  municipal  affair.  And 
there  is  no  doubt  that  had  the  California  court,  resting  upon  some 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      279 


such  argument  as  this,  chosen  to  assert  that  the  general  law  limit- 
ing the  power  of  all  the  local  subdivisions  of  the  state  in  the  matter 
of  imposing  license  taxes  on  business  was  not  a  law  relating  to 
municipal  affairs  but  a  law  regulating  a  state  affair,  there  would 
have  been  many  who  would  have  found  the  argument  of  the  court 
convincing.  The  truth  of  the  matter  is  that  the  " affair"  in  ques- 
tion was  both  a  municipal  and  a  state  affair ;  and  in  plain  point 
of  fact  it  was  impossible  for  anybody  to  put  it  exclusively  in  either 
the  one  or  the  other  category.  Yet  the  provision  of  the  constitu- 
tion which  had  to  be  construed  and  applied  distinctly  implied 
that  all  general  laws  could  be  separated  in  these  two  classes.  It 
was  this  which  led  Judge  McFarland,  who  concurred  in  the  judg- 
ment rendered  in  the  case,  to  assert  with  some  asperity  and  ir- 
ritation : 

The  section  of  the  constitution  in  question  uses  the  loose,  indefinable, 
wild  words  municipal  affairs,  and  imposes  upon  the  court  the  almost  im- 
possible duty  of  saying  what  they  mean.  This  court  has  not  under- 
taken, and  probably  will  not  undertake  to  give  a  general  definition  of  the 
words  so  as  to  bring  all  further  cases  within  the  two  categories  of  what  is 
and  what  is  not  a  "municipal  affair."  A  few  cases  involving  the  question 
have  arisen  and  in  each  of  such  cases  the  court  has  merely  determined, 
as  it  was  compelled  to  determine,  whether  the  thing  there  involved  was 
or  was  not  within  the  indeterminate  constitutional  words,  and  no  doubt 
in  the  future  each  case  involving  the  question  will  be  decided  on  its  own 
facts  without  an  attempt  at  generalization. 

In  other  words,  here  was  a  general  phrase  of  somewhat  vague 
import  which  was  so  difficult  to  apply  in  certain  instances  that  its 
construction  and  application  did  not  turn  upon  a  question  of  law 
or  of  fact  or  of  mixed  fact  and  law  but  merely  upon  a  matter  of  in- 
dividual opinion.  In  this  respect  it  was  not  unlike  certain  other 
vague  and  general  phrases  of  our  constitutional  law,  such  for  ex- 
ample as  the  guarantee  of  due  process  of  law.  And  just  as  the 
United  States  Supreme  Court  has  consistently  refused  to  give  any 
general  concrete  definition  of  the  phrase  "due  process  of  law,"  so  in 
the  opinion  of  Judge  McFarland  it  would  be  necessary  for  the  Cali- 
fornia court  by  a  gradual  and  cumulative  process  to  erect  a  defini- 
tion of  the  "wild"  phrase  "municipal  affairs"  only  to  the  extent 


280     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

that  it  became  obligatory  to  decide  in  particular  cases  that  this  or 
that  law  fell  within  or  without  the  category  created  by  this  term 
of  the  constitution. 

In  the  cases  of  Ex  parte  Helm  1  and  Ex  parte  Lemon  2  the  doc- 
trine of  Exparte  Braunwas  reaffirmed  as  applied  to  cities  still  operat- 
ing under  special  legislative  charters  that  antedated  1879.  Such 
cities  were  in  respect  to  their  exemption  from  the  operation  of 
general  laws  relating  to  " municipal  affairs"  on  the  same  footing 
with  cities  under  freeholders'  charters ;  and  the  law  limiting  the 
power  of  cities  in  the  matter  of  license  taxes  had  in  consequence 
no  application  to  them.  But  in  Ex  parte  Jackson 3  it  was  held,  as 
we  have  already  had  occasion  to  note,  that  this  law  did  apply  to 
cities  which  had  organized  under  the  general  municipal  corporation 
act  of  1883. 

While  the  decision  of  these  cases  apparently  gave  a  very  wide 
latitude  to  cities  under  freeholders'  charters  in  the  matter  of  choos- 
ing the  sources  of  local  revenues,  it  should  be  recorded  that  the 
cities  of  California,  like  most  other  cities  of  the  country,  have  in 
practice  raised  the  major  portion  of  their  revenue  from  the  general 
property  tax.  In  1910  an  amendment  to  the  constitution  was 
adopted  which  purported  to  separate  the  sources  of  state  and  local 
revenues.4  To  this  end  the  amendment  in  question  withdrew 
from  all  cities  and  counties  of  the  state  the  right  to  levy  taxes  on 
certain  classes  of  corporations  (chiefly  public  service  corporations, 
whether  local  or  extra-local  as  to  operation,  and  banking  and  in- 
surance corporations),  reserving  the  power  to  tax  such  corporations 
exclusively  to  the  state.  The  general  property  tax  was  left  to  the 
local  corporations  except  that  it  could  be  employed  by  the  state 
if  the  "exclusive"  source  of  revenue  proved  insufficient.5  By 

1  143  Cal.  553.     1904.  «  143  Cal.  558.     1904. 

»  143  Cal.  564  (1904) ;  supra,  253.  «  Art.  XIII,  sec.  14. 

1  In  the  first  year  of  the  operation  of  the  amendment  the  state  levied  an  ad 
valorem  tax  only  for  purposes  of  the  Panama-Pacific  Exposition.  There  is  no 
guarantee,  however,  that  the  direct  property  tax  may  not  ultimately  constitute 
a  more  or  less  permanent  part  of  the  central  fiscal  policy  as  the  expenses  of  the  state 
government  increase.  There  is  certainly  nothing  in  the  amendment  of  1910  to 
prevent  such  a  result. 


CONFLICT  WITH  STATE   LAWS  IN  CALIFORNIA     281 

this  amendment  exceedingly  important  limitations  were  imposed 
upon  the  power  of  home  rule  cities  to  govern  the  sources  of  their 
revenues. 

Upon  the  assumption  that  the  amendment  of  1919  had  accom- 
plished a  complete  separation  of  the  sources  of  state  and  local  reve- 
nues —  which  it  obviously  had  not  —  an  amendment  was  proposed 
for  adoption  in  November,  1914,  which  was  put  before  the  people 
of  the  state  under  the  vote-catching  slogan  of  "home  rule  in  taxa- 
tion." Briefly  put,  this  amendment  empowered  cities  or  other 
political  divisions  of  the  state  to  adopt  upon  a  referendum  vote 
any  system  of  raising  revenue  that  they  desired,  provided  that  no 
encroachment  was  made  upon  the  sources  of  revenue  set  aside 
exclusively  to  the  state.  Unquestionably  the  proposal  was  fos- 
tered by  the  advocates  of  the  so-called  single  tax.  It  was  defeated 
at  the  polls.  Presumably  the  necessity  for  such  an  amendment 
lay  in  the  broad  declaration  of  the  constitution  to  the  effect  that 
"  all  property  in  the  state  .  .  .  shall  be  taxed  in  proportion  to  its 
value"  and  in  the  definition  of  the  term  " property"  to  include 
most  varieties  of  personalty  as  well  as  realty.1  This  provision  did 
not  refer  specifically  to  municipal  taxation,  but  since  the  large 
withdrawal  of  the  state  under  the  amendment  of  1910  from  the 
field  of  the  general  property  tax,  it  manifestly  related  more  particu- 
larly to  municipal  and  county  taxation  than  to  state  taxation. 
Even  so,  the  proposed  amendment  of  1914  did  not  repeal  this  orig- 
inal declaration  of  the  constitution  and  under  the  liberal  doc- 
trine of  the  court  in  the  above-mentioned  Braun  and  reaffirmative 
cases,  it  is  not  plain  to  see  the  ground  upon  which  the  court  might 
declare  void  an  experiment  in  the  single  tax  plan  should  some  city, 
abandoning  the  general  property  tax,  attempt  to  introduce  the 
single  tax  or  some  other  revenue-producing  experiment. 

Another  amendment  rejected  by  the  voters  of  California  in  No- 
vember, 1914,  was  one  which  gave  constitutional  sanction  to  the  prin- 
ciple of  the  excess  condemnation  of  land  for  public  improvements. 
Again  it  is  difficult  to  see  why  such  an  amendment  is  necessary 
so  far  as  home  rule  cities  are  concerned.  The  constitution  con- 

1  Art.  XII,  sec.  1,  as  amended  in  1894. 


282     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tains  no  expressly  prohibitive  provision  of  a  pertinent  character.1 
From  the  constitutional  point  of  view  the  vital  questions  in  the 
establishment  of  such  a  practice  are  whether  the  excess  property 
condemned  is  or  is  not  for  a  public  purpose  and  whether  the.  special 
assessments  levied  to  defray  the  cost  of  such  excess  condemnation 
are  or  are  not  taxes  levied  for  a  public  purpose.2  These  are  ques- 
tions which  have  not  yet  been  definitely  settled  in  our  law.  The 
first  is  undoubtedly  a  federal  question  arising  under  the  guarantee 
of  due  process  of  law,  and  the  second  certainly  involves  a  general 
doctrine  of  our  law.  But  these  questions  have  no  special  relation  to 
the  competence  of  home  rule  cities.  They  could  certainly  be  settled 
quite  as  easily  under  the  provisions  of  a  freeholders'  charter  asunder 
a  state  law  or  the  sanction  of  a  state  constitutional  provision. 

It  should  be  mentioned  in  concluding  this  discussion  of  the  finan- 
cial competence  of  home  rule  cities  in  California  that,  unlike  many 
constitutions,3  the  fundamental  law  of  that  state  does  not  impose 
either  an  absolute  debt  or  tax  limit  upon  municipal  corporations 
but  merely  requires  a  referendum  upon  a  proposition  to  incur  a 
debt  in  excess  of  annual  income.4  Debt  or  tax  limitations  are  some- 
times imposed  by  the  provisions  of  freeholders'  charters  (such  for 
instance  as  the  "dollar  tax  limit"  provision  of  the  San  Francisco 
charter,5  or  the  $5,000,000  debt  limit  of  the  Los  Angeles  charter  6), 
but  no  case  has  ever  arisen  involving  the  question  as  to  whether 
the  imposition  of  such  a  limitation  by  state  law  would  or  would 
not  be  a  municipal  affair. 

Is  the  Regulation  of  Matters  pertaining  to  Bond  Issues  a  Municipal 

Affair? 

A  somewhat  curious  case  involving  the  rights  of  cities  after  1896 
was  that  of  Fritz  v.  San  Francisco.7  In  1889  the  legislature  had 

1  See  the  somewhat  usual  clause  of  the  declaration  of  rights  on  the  subject  of 
taking  private  property  for  a  public  purpose,  Art.  I,  sec.  14. 

*  McBain,   "Taxation  for  a  Private  Purpose,"  in  Political  Science  Quarterly, 
29 :  201,  n.  2.  »  Supra,  54.  «  Art.  XI,  sec.  18. 

1  San  Francisco  charter  of  1900,  Art.  Ill,  ch.  2,  sec.  11. 

•  Los  Angeles  charter  of  1889,  Art.  XII,  sec.  223,  as  amended  in  1903. 
»  132  Cal.  373.     1901. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     283 

enacted  a  general  law  known  as  the  Park  and  Boulevard  Act, 
which  regulated  the  matter  of  bond  issues  for  certain  public  im- 
provements. Under  this  act  the  people  of  San  Francisco  in  Decem- 
ber, 1899,  voted  affirmatively  upon  the  matter  of  a  certain  bond  issue. 
On  January  1,  1900,  and  therefore  before  the  bonds  in  question  had 
been  actually  issued,  the  freeholders'  charter  went  into  operation. 
This  charter  provided  a  different  scheme  for  issuing  bonds  for  such 
purposes.  The  court  held  that  the  bonds  that  had  been  voted 
could  not  issue  at  all. 

The  first  strange  aspect  of  the  opinion  handed  down  was  that  the 
municipal  affairs  amendment  was  not  mentioned  at  all.  It  was 
not  specifically  declared  that  the  Park  and  Boulevard  Act  was  a 
general  law  relating  to  municipal  affairs  and  as  such  could  not  con- 
trol the  provisions  of  the  charter  which  conflicted  with  it.  On  the 
contrary  the  clause  relied  upon  to  sustain  the  supersedure  of  the 
charter  provisions  was  that  which  declared  that  a  freeholders' 
charter  should  supersede  "all  laws  inconsistent  with  such  charter." 
In  the  constitutional  provision  as  originally  phrased  this  clause 
had  read  "all  special  laws  inconsistent  with  such  charter."  In 
1892  at  the  time  when  the  right  to  frame  charters  by  amendment 
was  extended  to  cities  of  three  thousand  five  hundred  inhabitants 
the  word  "special"  was  omitted  from  this  clause.1  This  fact  was 
apparently  unnoticed  by  the  courts  until  the  decision  (nine  years 
later  and  five  years  after  the  "municipal  affairs"  amendment)  of 
the  case  here  under  review ;  but  meantime,  as  we  have  seen,2  the 
court  went  on  after  1892  deciding  cases  in  which  general  laws  were 
held,  under  the  provisions  of  section  six  of  article  eleven,  to  super- 
sede the  provisions  of  freeholders'  charters  and  did  not  refer  to 
the  fact  that,  under  section  eight  of  that  article  as  amended  in 
1892,  a  charter  of  this  kind  was  declared  to  supersede  "all  laws 
inconsistent  with  such  charter."  It  was  passing  strange,  there- 
fore, that  the  court  should  at  so  late  a  date  have  discovered 
the  existence  of  this  provision  and  should  have  ignored  the  "mu- 
nicipal affairs"  amendment,  although  in  consideration  of  the  actual 
existence  of  this  amendment,  upon  which  reliance  might  easily 

1  Supra,  224.  2  Supra,  246,  256,  269,  271. 


284     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

have  been  placed,  the  point  is  perhaps  more  singular  than  im- 
portant. 

The  second  suprising  aspect  of  the  opinion  in  this  case  is  that  the 
court  apparently  held  the  Park  and  Boulevard  Act  of  1889  to  have 
been  properly  applicable  and  controlling  in  San  Francisco  at  the 
time  when  the  vote  was  taken  in  December,  1899.  Under  the  doc- 
trine of  the  Byrne  case,  as  has  already  been  indicated,  it  is  difficult 
to  see  why  the  amendment  of  1896  had  not  lifted  the  force  of  this 
general  law  relating  to  a  municipal  affair  and  restored  the  provi- 
sions upon  this  subject  of  the  special  legislative  charter  of  San 
Francisco  —  the  old  consolidation  act  —  thus  rendering  the  entire 
proceedings  under  the  general  law  void  in  the  same  way  that  the 
proceedings  under  the  street  opening  act  in  Los  Angeles  instead  of 
under  the  charter  provisions  were  rendered  void.  The  absolute 
identity  of  the  legal  situations,  however,  does  not  appear  to  have 
occurred  to  the  court ;  for  the  argument  advanced  against  the  valid- 
ity of  bond  issue  was  that  it  was  only  upon  the  effectuation  of  the 
charter  that  the  general  law  ceased  to  have  any  application.  The 
issue  of  bonds  could  not,  therefore,  be  completed  under  the  terms 
of  the  act.  On  the  other  hand,  they  could  not  be  issued  under  the 
terms  of  the  charter,  for  the  only  bonds  which  the  charter  contem- 
plated as  being  issued  under  its  terms  were  those  which  had  been 
voted  for  in  accordance  with  the  provisions  of  the  charter.  In 
other  words,  the  completion  of  valid  proceedings  which  had  been 
partially  completed  had  been  effectually  estopped  by  the  adoption 
of  the  charter. 

In  Brookes  v.  City  of  Oakland  1  bonds  for  sewer  construction  had 
been  issued  under  an  act  in  1911,  the  general  law  of  the  state  gov- 
erning the  issue  of  such  bonds  having  been  adopted  by  the  free- 
holders' charter.  The  act  itself,  and  therefore  the  bonds  issued 
in  pursuance  thereof,  was  held  void  in  this  case  on  the  ground  that 
it  deprived  the  persons  assessed  of  property  without  due  process 
of  law.  It  was  also  contended  that  the  rate  of  interest  allowed  by 
the  act  was  in  conflict  with  the  provisions  of  the  charter,  which 
limited  the  rate  to  be  paid  on  municipal  bonds  to  five  per  cent. 

*  160  Cal.  423.     1911. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      285 

The  court,  however,  avoided  the  decision  of  the  question  of  con- 
flict by  pointing  out  that  the  bonds  referred  to  in  the  charter  were 
bonds  of  the  city  as  such,  while  the  bonds  issued  under  the  act  in 
question  were  those  of  the  " sewer  districts"  provided  for  in  the 
act.  While  the  fundamental  question  that  is  of  significance  to 
our  study  was  thus  avoided  and  left  unsettled,  it  is  nevertheless 
easy  to  see  how  such  a  question  of  conflict  might  have  been  some- 
what difficult  to  determine. 

As  a  matter  of  fact,  it  appears  that  no  California  case  has  ever 
as  yet  directly  decided  whether  the  regulation  of  the  details  of  the 
issuance  of  municipal  bonds  is  or  is  not  a  municipal  affair.  This  is 
undoubtedly  due  in  large  part  to  the  fact  that  most  freeholders' 
charters  have  adopted  the  provisions  of  the  general  law  upon  this 
subject.1  A  number  of  cases  have  been  decided  by  the  courts 
involving  the  validity  of  such  laws,2  but  there  has  naturally  been 
no  occasion  for  discussing  whether  the  regulation  of  matters  per- 
taining to  bond  issues  was  or  was  not  a  municipal  affair.  Among 
the  freeholders'  charters  of  the  state  that  of  San  Francisco  seems 
to  be  somewhat  unique  in  respect  to  the  extent  of  its  provisions 
upon  this  subject 3  and  its  failure  to  adopt  the  state  law.  Without 
passing  upon  the  point  specifically,  the  above-mentioned  case  of 
Fritz  v.  San  Francisco  certainly  indicated  strongly  that  the  sub- 
ject of  these  charter  provisions  would  be  regarded  as  a  municipal 
affair  that  could  not  be  controlled  by  state  law.  It  ought  to  be 
mentioned  again  perhaps  in  conclusion  that  the  constitution  itself 
imposes  certain  restrictions  upon  the  cities  of  California  in  the 
matter  of  incurring  bonded  indebtedness.4 

1  See,  for  example,  Oakland  charter  of  1910,  Art.  IX,  sec.  49,  sub-sec.  14 ;  Stock- 
ton charter  of  1911,  Art.  VIII,  sec.  70,  sub-sec.  9 ;  Alameda  charter  of  1906,  Art.  V, 
sec.  11 ;   San  Diego  charter  of  1889,  Art.  VI,  ch.  2,  sec.  12  ;   Los  Angeles  charter  of 
1889,  Art.  XXII,  sec.  223  (as  amended  in  1903)  ;  Berkeley  charter  of  1909,  Art.  IX, 
sec.  47,  sub-sec.  8 ;   Pasadena  charter  of  1905,  Art.  XII,  sec.  21. 

2  City  of  Oakland  v,  Thompson,  151  Cal.  572  (1907) ;  City  of  San  Diego  v.  Potter, 
153  Cal.  288  (1908) ;   Haughawout  v.  Percival,  161  Cal.  491  (1911) ;  Perry  v.  City 
of  Los  Angeles,  157  Cal.  146  (1909). 

3  San  Francisco  charter  of  1900  as  amended  down  to  1911,  Art.  XII,  sees.  5, 
10  ff. ;  Art.  XVI,  sec.  29. 

4  Art.  XI,  sec.  18,  as  amended  in  1900  and  1906. 


286  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

7s  the  Control  of  Matters  relating  to  the  Public  Health  a  Municipal 

Affair? 

In  1902  the  court  was  called  upon  to  consider  a  somewhat  diffi- 
cult situation  growing  out  of  the  establishment  of  a  board  of  health 
under  the  terms  of  the  freeholders'  charter  of  San  Francisco  which 
went  into  effect  in  1900.  In  1870  the  legislature  had  created  a 
board  of  health  for  the  consolidated  city  and  county  with  a  mem- 
bership consisting  of  the  mayor  and  four  physicians  appointed  by 
the  governor.  Although  the  jurisdiction  of  this  board  extended 
slightly  beyond  the  boundaries  of  the  city  and  county,  it  was  the 
only  department  in  the  city  which  had  control  over  matters  relat- 
ing to  the  public  health  and  was  in  fact,  so  far  as  its  functions  were 
concerned,  a  municipal  board  of  health.  Before  the  adoption  of 
the  constitution  of  1879  the  provisions  of  law  by  which  this  board 
was  established  were  incorporated  into  the  Political  Code  of  the 
state  as  a  part  of  the  general  laws  of  the  state  relating  to  public 
health.  In  1899  some  question  arose  over  the  provision  of  the  code 
regulating  the  term  of  office  of  the  members  of  this  board  ap- 
pointed by  the  governor,  and  the  court  held  that  both  under  the 
constitution  of  1849  and  the  constitution  of  1879,  the  members 
of  the  board  were  " officers"  within  the  meaning  of  that  term  as 
used  in  the  provision  of  the  constitution  which  made  four  years 
the  maximum  term  which  could  be  established  for  state  officers.1  A 
year  later  the  court  declared  void  a  police  ordinance  of  the  board 
of  supervisors  of  San  Francisco  which  regulated  the  making  of  in- 
terments in  cemeteries  on  the  ground  that  such  ordinance  was  in 
conflict  with  a  provision  of  the  general  law  by  which  the  board 
of  health  was  established.  The  opinion  delivered  in  this  case 
recited  as  follows : 2 

1  People  ex  reL  Davidson  v.  Perry,  79  Cal.  105  (1889).  Said  the  court :  "Unlike 
the  commissioners  of  the  funded  debt,  who  in  People  v.  Middleton,  28  Cal.  604, 
were  held  not  to  be  officers  within  the  meaning  of  the  section  referred  to,  the  mem- 
bers of  this  board  exercise  important  police  powers  pertaining  to  the  administration 
of  the  state  government,  and  are  officers  according  to  the  strictest  definition  of  the 
term  as  employed  in  section  7  of  article  XI  of  the  constitution  of  1849,  and  in 
section  16  of  article  XX  of  the  constitution  of  1879." 

»  Ex  parte  Keeney,  84  Cal.  304.     1890. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     287 

It  is  very  clear  that  by  this  article  the  legislature  has  undertaken,  as  a 
part  of  the  provisions  of  the  general  law  "relating  to  the  public  health," 
and  through  a  local  department  of  the  state  government?-  to  wit,  a  board  of 
health  for  the  city  and  county  of  San  Francisco,  all  the  members  of  which, 
except  the  mayor  of  the  city  and  county,  are  appointed  by  the  governor, 
to  manage  and  control  certain  —  we  do  not  say  all,  but  certain  —  of  the 
sanitary  regulations  of  the  city  and  county  and  contiguous  harbor  of  San 
Francisco,  and  by  section  3025  has  particularly  undertaken  to  manage  and 
control  the  conditions  and  terms  upon  which  permits  for  the  interment  of 
human  bodies  within  said  city  and  county  may  be  issued,  and  by  whom. 

Although  strictly  speaking  neither  one  of  these  cases  was  con- 
cerned with  any  construction  of  the  home  rule  provisions  of  the 
California  constitution,  the  tenor  of  the  opinions,  if  not  indeed  the 
express  language  that  was  employed,  clearly  indicated  that  the 
court  regarded  the  matter  of  local  health  regulation  to  be  a  pecu- 
liarly appropriate  subject  for  state  control. 

Shortly  after  the  freeholders'  charter  of  San  Francisco  went  into 
effect  a  proceeding  in  the  nature  of  a  quo  warranto  was  instituted 
by  the  health  officer  of  the  state-appointed  board  against  the  locally 
appointed  board  to  try  the  legality  of  the  existence  of  the  latter 
body  as  established  by  the  charter.  In  the  resulting  case  of  the 
People  ex  rel.  Lawlor  v.  Williamson  2  all  of  the  judges  of  the  court 
concurred  in  the  judgment  sustaining  the  validity  of  the  existence 
of  the  charter  board ;  but  four  separate  opinions  were  handed 
down,  and  upon  no  one  of  these  did  a  majority  of  the  court  agree. 
In  the  opinion  spoken  by  Judge  Temple  two  other  judges  concurred. 
Referring  to  the  duties  imposed  upon  the  charter  board,  he  said : 

It  is  evident  that  the  powers  conferred  upon  and  duties  required  of  this 
board  are  strictly  municipal  in  their  character.  All  that  is  required  of  the 
board  is  peculiarly  for  the  inhabitants  of  the  city,  and  not  directly  for  the 
benefit  of  some  one  else.  As  to  some  of  the  functions  of  the  board,  a 
charter  which  did  not  in  some  way  provide  for  them  .  .  .  would  be  intoler- 
able. It  may  be  safely  said  that  no  such  charter  exists  and  that  all  that 
is  here  provided  for  is  usually  provided  or  permitted  in  the  charters  of 
large  cities. 

The  board  with  its  functions,  being  in  its  nature  an  "affair"  appropriate 
for  a  municipality,  and  being  actually  contained  in  the  charter,  is  a  "mu- 

1  [The  italics  are  interpolated.]  2  135  Cal.  415.     1902. 


288     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

nicipal  affair,"  within  the  meaning  heretofore  given  to  the  phrase  "mu- 
nicipal affairs. ' '  The  suggestion  that  an  ' '  affair ' '  already  existing  under  the 
laws  of  the  state,  and  for  the  people  generally,  including  the  inhabitants 
of  the  city  cannot  be  made  a  municipal  "affair"  does  not  seem  to  me  to 
merit  discussion.  The  charter  supersedes  all  laws  inconsistent  therewith. 
I  do  not  wish  to  intimate  a  doubt  as  to  the  entire  validity  of  the  charter 
provision  on  this  subject ;  but  for  the  purposes  of  this  case  it  is  not  neces- 
sary to  decide  whether  some  of  its  provisions  are  not  void  because  incon- 
sistent with  the  code  provisions.  If  there  is  anything  which  the  charter 
board  can  lawfully  do,  the  city  may  maintain  it  [i.e.  the  board]  .... 

The  charter  is  itself  a  law  of  the  state.  It  matters  not  for  this  purpose 
whether  it  is  a  statute  passed  by  the  legislature  or  by  a  board  of  free- 
holders with  a  referendum  to  the  people  of  the  city.  We  must  presume, 
if  these  provisions  are  valid,  that  in  creating  the  charter  and  making  it 
a  law,  the  people  have  adopted  a  means,  in  their  judgment,  likely  to  pro- 
tect the  people  of  the  state  from  such  dangers.  .  .  . 

It  may  be  true  that  the  freeholder  charter  scheme  confers  greater  influ- 
ence in  legislative  matters  upon  the  inhabitants  of  the  favored  cities  than  is 
enjoyed  by  the  people  who  do  not  reside  in  such  cities.  The  inhabitants 
of  the  favored  cities  may  participate  in  making  laws  for  others  which  have 
no  operation  at  all  as  to  them,  while  the  outsider,  after  the  charter  has 
once  been  made,  has  no  voice  in  making  such  laws  for  those  within  the 
city,  even  when  he  is  vitally  and  directly  interested  in  them.  But  if  this 
be  an  inequality,  the  people  have  themselves  created  it,  and  if  a  remedy  is 
needed,  they  can  provide  it.  ... 

As  I  have  said,  we  have  in  this  case  nothing  to  do  with  the  former 
board.  We  are  neither  required  nor  authorized  to  determine  in  this  case 
whether  such  board  still  continues  in  existence,  or  if  it  does  exist,  what 
powers  and  functions  are  left  to  it.  The  charter  board  certainly  has  some 
powers  which  the  charter  confers  upon  it,  and  if  to  any  extent  the  code 
sections  creating  the  former  board  are  inconsistent  with  the  valid  grant  of 
power  conferred  by  the  charter,  to  that  extent  they  are  superseded  by  the 
charter. 

Said  Judge  Van  Dyke,  in  whose  opinion  no  other  member  of  the 
court  concurred : 

The  provisions  of  the  freeholders'  charter  upon  the  subject  of  public 
health  concerns  [sic]  "municipal  affairs.".  .  .  It  is  quite  true  that  the 
preservation  of  the  health  concerns  the  whole  state  as  well  as  the  city. 
In  such  matters  it  may  be  found  necessary  for  the  state  by  general  laws 
operating  outside  as  well  as  in  cities,  to  provide  against  the  spread  of  con- 
tagious diseases  and  like  matters.  The  state  board  of  health  [for  San 
Francisco]  has  jurisdiction  coextensive  with  the  bay  and  harbor  of  San 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      289 

icisco,  and  the  quarantine  grounds  for  the  same  are  located  at  Sausa- 
ito,  in  Marin  county  [outside  of  the  city  and  county  corporation], 

I  see  no  reason,  therefore,  why  the  charter  provisions  are  not  valid, 
and  if  there  be  any  laws  inconsistent  therewith,  they  are  by  the  plain  terms 
of  the  constitution,  to  that  extent  superseded. 

Said  Judge  McFarland,  who  likewise  spoke  for  himself  alone : 

I  concur  in  the  judgment  of  affirmance  on  the  ground  that  it  does  not 
appear  that  the  charter  board  is  an  illegal  body  or  is  wrongfully  usurping 
powers.  It  may  do  many  things  not  inconsistent  with  the  powers  granted 
by  the  state  to  the  old  board.  But,  in  my  opinion,  public  health  is  a  matter 
in  which  the  whole  people  of  the  state  are  concerned  .  .  .  and,  in  my 
opinion,  whenever  the  provisions  of  a  municipality,  by  charter  or  other- 
wise, conflict  with  laws  of  the  legislature  upon  that  subject,  the  former 
must  yield,  because  "in  conflict  with  general  laws."  The  public  health 
is  not  a  "municipal  affair"  in  the  sense  of  excluding  the  jurisdiction  of  the 
state  over  the  subject.  But  there  is  a  wide  scope  for  municipal  action 
on  this  subject  not  inconsistent  with  general  laws. 

The  opinion  of  Judge  Harrison,  in  wlrch  one  other  judge  con- 
curred, ran  in  part  as  follows : 

The  supervision  and  control  of  the  sanitary  condition  of  a  city,  and  pro- 
vision for  the  health  of  its  inhabitants,  are,  as  is  shown  in  the  opinion  of 
Mr.  Justice  Temple,  eminently  a  "municipal  affair";  and  the  establish- 
ment of  a  board  of  health  which  shall  have  the  management  and  control 
of  that  "affair"  is  an  appropriate  provision  of  a  municipal  charter.  To 
the  extent  that  the  provisions  of  the  charter  upon  this  subject  are  within 
this  "municipal  affair,"  to  that  extent  the  board  of  health  created  by  the 
charter  is  not  an  illegal  body.  Whether  any  of  the  provisions  of  the  charter 
upon  this  subject  are  inconsistent  with  the  general  laws  of  the  state,  and 
whether  there  are  provisions  in  the  general  laws  which  are  not  covered  by 
the  provisions  of  the  charter,  is  not  involved  in  this  case. 

Neither  are  we  now  called  upon  to  define  the  respective  authority  of  the 
board  of  health  created  by  the  charter  and  of  that  authorized  by  the  Po- 
litical Code.  So  long  as  the  functions  to  be  exercised  by  the  respective 
boards  are  not  identical,  there  can.  be  no  inconsistency  in  permitting  each 
to  perform  the  functions  prescribed  for  it;  but  to  the  extent  that  the 
functions  prescribed  for  the  one  authorized  by  the  Political  Code  are  of 
a  municipal  character,  these  provisions  have  been  superseded  by  the 
charter. 

The  opinions  handed  down  in  this  case  have  been  presented 
here  at  some  length  not  only  because  of  the  intrinsic  importance  of 


290     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  broad  question  before  the  court  but  also  because  of  the  great 
contrariety  of  view  to  which  expression  was  given.  One  or  two 
points  of  interest  may  be  noted. 

In  the  first  place,  the  proposition  that  the  regulation  of  matters 
relating  to  the  public  health  in  a  city  was  a  "municipal  affair" 
was  agreed  to  by  all  except  one  judge  —  McFarland  —  who 
took  the  view  that  while  such  a  matter  was  in  all  of  its  aspects 
a  " state  affair,"  yet  the  charter  board  of  San  Francisco  was  not 
an  illegal  body  because  the  case  did  not  show  that  this  board 
was  performing  any  function  that  was  inconsistent  with  state  law, 
and  there  was  certainly  room  for  the  control  by  the  "municipal" 
board  of  matters  not  regulated  by  state  law.  In  other  words,  it 
was  his  opinion  that  a  local  board  might  be  created  to  control  a 
"state  affair"  to  the  extent  that  the  field  of  regulation  was  not 
occupied  by  the  state  itself. 

The  other  judges  differed  somewhat  in  their  views  as  to  the  ex- 
tent to  which  the  regulation  of  public  health  was  a  "municipal 
affair."  While  they  were  all  careful  to  declare  that  the  case  did 
not  necessitate  the  determination  of  the  point  at  which  the  con- 
trol of  public  health  ceased  to  be  a  "municipal"  and  became  a 
"state"  affair,  it  was  manifest  that  Judge  Temple,  who  spoke  for 
himself  and  two  of  his  colleagues,  regarded  public  health  as  a  munic- 
ipal affair  to  just  such  extent  as  the  city,  acting  of  course  within 
its  territorial  jurisdiction,  chose  to  subject  it  to  its  own  control. 
Recognizing  that  the  regulation  of  such  matters  might  affect  the 
"outsider,"  who  might  be  "vitally  and  directly  interested  in  them," 
he  in  effect  declared  that  the  constitution  permitted  cities  to  con- 
trol this  "municipal  affair"  even  though  the  effect  of  such  control 
extended  beyond  the  municipal  boundaries,  and  that  if  the  people 
were  dissatisfied  with  such  a  result  -they  should  avail  themselves 
of  the  remedy  of  amending  the  constitution.  This  opinion  was 
premised  upon  the  view  that  a  freeholders'  charter  was  in  every 
possible  respect  a  "law"  of  the  state. 

On  the  other  hand  it  was  evidently  the  opinion  of  Judge  Van  Dyke 
that  in  the  matter  of  public  health  it  was  possible  to  make  some  kind 
of  division  of  authority  between  the  city  and  the  state  upon  the 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      291 

sis  of  whether  or  not  a  particular  matter  of  control  affected  per- 
ms outside  the  city;    and  as  evidencing  the  possibility  of  this 
li vision  of  jurisdictions  between  the  two  boards  in  question  he  laid 
emphasis  upon  the  fact  that  the  " state"  board  had  some  jurisdic- 
tion beyond  the  territory  of  the  municipal  corporation  proper.     Of 
>mewhat  the  same  purport  was  the  view  of  Judge  Harrison,  with 
rhom  Judge  Garoutte  concurred.     Taking  advantage  of  the  bare 
lecessities  of  the  issue  at  bar  and  of  the  fact  that  the  powers  of  the 
two  boards  were  not  in  all  respects  identical,  he  straddled  the  ques- 
tion of  a  division  of  jurisdiction  as  squarely  as  possible,  for  in  effect 
he  declared  that  public  health  was  a  " municipal  affair"  to  the  ex- 
tent that  it  was  " municipal"  and  that  to  this  same  extent  were  the 
provisions  of  the  charter  controlling. 

In  the  second  place,  it  is  well-nigh  impossible  to  escape  the  con- 
clusion that  the  court  welcomed  the  opportunity  to  limit  itself 
to  the  decision  of  the  one  direct  issue  involved  in  the  case  as  it  was 
presented.  This  issue  was  solely  as  to  whether  the  charter  board 
was  a  legally  established  body.  All  of  the  judges  agreed  in  sus- 
taining its  legality,  at  least  for  some  purposes,  although,  as  has  been 
.said,  they  were  obviously  not  of  a  mind  as  to  what  purposes.  As 
a  result  of  the  character  of  the  action  that  was  brought  the  question 
involved  was  in  point  of  fact  not  a  question  of  the  relation  between 
a  charter  provision  and  a  conflicting  general  law  of  the  state.  It 
was  rather  a  question  of  whether  power  to  regulate  some  matters 
relating  to  public  health  might  be  conferred  by  a  freeholders' 
charter.1  Had  the  case  been  of  another  character,  involving, 
let  us  say,  the  legality  of  some  action  of  the  charter  board  under 
the  contention  that  the  provision  of  the  charter  was  in  conflict 
with  the  law  creating  the  state-appointed  board,  the  question 
as  to  the  extent  to  which  public  health  was  a  " municipal  affair" 
would  have  been  squarely  presented.  It  was  the  character  of  the 
cause  —  a  proceeding  in  the  nature  of  a  quo  warranto  —  that 

1  This  whole  question  of  the  powers  which  may  be  exercised  under  a  freeholders' 
charter  where  no  question  of  conflict  between  charter  provision  and  state  law  is 
involved  is  considered  in  the  next  chapter.  The  case  of  the  People  v.  William- 
son is  discussed  at  this  point  because  it  trenched  so  nearly  upon  the  question  of  such 
•conflict. 


292     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

enabled  the  court  to  avoid  the  determination  of  this  difficult  but 
highly  important  question.  For  this  avoidance  the  court  cannot 
of  course  be  criticized,  but  neither  must  the  fact  be  ignored  that 
although  the  provisions  of  the  charter  and  the  provisions  of  the 
law  were  not  precisely  identical  as  to  phraseology  and  as  to  the 
powers  conferred  upon  the  boards  which  they  respectively  estab- 
lished, nevertheless  each  of  these  boards  was  in  effect  a  health 
board  for  San  Francisco,  with  most  of  the  powers  commonly  con- 
ferred upon  such  an  administrative  authority.1  The  California 
court  was  never  compelled  to  settle  any  controversy  between 
these  two  boards.  Following  the  decision  of  the  Williamson  case 
it  appears  that  the  state-appointed  board  voluntarily  ceased  to 
exist,  although  it  is  obvious  that  neither  the  judgment  rendered 
nor  the  opinions  expressed  in  that  case  actually  necessitated  such 
a  result. 

Another  case  which  involved  the  validity  of  provisions  relating 
to  public  health  in  the  charter  of  San  Francisco  and  in  which  the 
court  was  able  to  avoid  the  necessity  of  determining  whether  the 
general  law  superseded  a  conflicting  charter  provision  was  that  of 
the  Odd  Fellows  Cemetery  Association  v.  San  Francisco.2  This 
case  arose  out  of  a  contest  concerning  the  validity  of  an  ordinance 
of  the  city  prohibiting  the  burial  of  the  dead  anywhere  within  the 
city  and  county  of  San  Francisco.  It  was  contended,  among  other 
things,3  that  the  authority  conferred  by  the  charter  in  this  regard 
and  the  ordinance  enacted  under  such  authority  were  void  as  being 
in  conflict  with  a  general  law  of  the  state  which  forbade  the  burial 
of  a  body  in  the  city  and  county  "  except  in  some  cemetery  already 
existing  under  the  laws  of  the  state  or  thereafter  established  by 

1  In  the  case  of  People  v.  Perry,  supra,  286,  the  court  in  describing  the  functions  of 
the  state-appointed  board  said  :  "The  authority  conferred  upon  the  board  embraces 
the  power  to  appoint  a  subordinate  executive  officer,  to  exercise  a  general  supervision 
over  att  matters  appertaining  to  the  sanitary  condition  of  the  city,  to  control  the  landing 
of  passengers  and  freight,  to  seclude  persons  affected  with  contagious  diseases,  control 
burials,  and  abate  nuisances.1'  It  would  be  difficult  in  general  terms  to  describe 
more  accurately  the  duties  of  the  usual  municipal  board  of  health. 

2 140  Cal.  226  (1903)  ;  reaffirmed  in  Laurel  Hill  Cemetery  v.  City  and  County 
of  San  Francisco,  152  Cal.  464  (1907). 

•  On  the  question  of  the  police  power  as  decided  by  this  case  see  infra,  328. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     293 

the  board  of  supervisors"  of  the  corporation.     Replying  to  this 
contention  the  court  said : 

This  is  a  negative  provision,  and  does  not  by  inference  confer  the  right 
to  bury  in  the  excepted  cemeteries.  That  right  was  preexisting,  but  was 
subject  to  be  taken  away  by  police  regulations,  and  remained  subject  to 
that  condition  after  the  enactment  of  section  297  [of  the  Penal  Code] 
to  the  same  extent  as  before.  So  far  as  the  ordinance  forbids  burials 
outside  of  those  cemeteries,  it  is  in  strict  accord  with  section  297 ;  and  so 
far  as  it  forbids  burials  within  these  cemeteries,  it  is  not  in  conflict,  for 
that  section  gives  no  right  to  do  that  and  makes  no  provision  relating 
thereto.  It  may  be  that  the  law  supersedes  the  ordinance,  so  far  as  the 
territory  embraced  is  the  same  in  both,  and  that  the  ordinance  is  to  that 
extent  inoperative.  If  so,  the  only  result  will  be  that  for  the  offense  of 
burial  in  any  place  other  than  an  established  cemetery,  the  prosecution  and 
punishment  must  be  under  state  law,  and  for  a  burial  within  such  cem- 
eteries, it  must  be  under  the  ordinance  which  as  to  such  territory  is  in 
force  and  effect.  The  slight  difference  in  the  punishment  provided  is,  in 
view  of  this  result,  immaterial. 

Here  was  indeed  a  guarded  admission  that  the  state  law  to  the 
extent  that  it  had  occupied  the  field  of  regulation  of  burials  was 
paramount  to  municipal  regulations  upon  the  same  subject;  but 
the  court  went  no  further  than  to  declare  that  "it  may  be"  that  the 
law  supersedes  the  ordinance  to  this  extent.  Had  the  ordinance 
permitted  burials  in  other  than  established  cemeteries,  it  would 
have  been  in  direct  conflict  with  the  state  law  and  a  positive  de- 
termination of  the  point  would  have  been  material  and  important. 
For  the  issue  of  this  case  it  was,  as  the  court  declared,  immaterial. 

It  cannot  be  said,  then,  that  the  cases  in  the  California  books 
give  us  a  very  definite  idea  as  to  the  relation  of  supersedence  be- 
tween state  laws  and  charter  provisions  regulating  matters  pertain- 
ing to  the  control  of  public  health.  So  far  as  such  control  extended 
merely  to  the  enactment  of  a  health  law  under  the  exercise  of  the 
police  power  presumably  such  a  law,  as  was  intimated  in  the  Odd 
Fellows  Cemetery  case,  would  control  a  conflicting  charter  pro- 
vision or  an  ordinance  enacted  pursuant  to  such  a  provision,  under 
the  general  rule  applicable  alike  to  legislative  and  freeholders' 
charters.1  But  so  far  as  such  control  extended  to  matters  con- 

1  Supra,  256. 


294     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

cerning  the  organization,  operation,  and  methods  of  the  health 
department,  the  status  of  the  law  has  not  yet  been  determined. 
In  practice  such  matters  are  regulated  largely,  if  not  entirely,  by 
the  cities  themselves. 

It  must  not  be  supposed,  however,  that  the  situation  in  Cali- 
fornia in  respect  to  control  over  matters  pertaining  to  public 
health  has  been  resolved  without  some  manoeuvring  on  the  part 
of  cities  to  avoid  conflicts  with  state  laws.  In  respect  to  this 
the  president  of  the  San  Francisco  board  of  health  has  written  as 
follows : 1 

On  more  than  one  occasion  where  there  was  a  possibility  of  a  clash 
between  the  general  law  and  the  ordinances  of  the  city  and  county,  the 
supervisors  have  taken  the  law  as  a  whole  and  enacted  it  as  an  ordinance. 
The  most  notable  illustration  was  in  the  case  of  the  Tenement  House  Act. 
Any  possible  conflict  was  avoided  by  incorporating  the  act  as  a  whole  in 
the  building  ordinance  of  the  city  and  county  of  San  Francisco. 

Sometimes  the  state  board 2  and  the  city  board  in  their  several  jurisdic- 
tions approach  very  closely,  as,  for  instance,  in  the  care  of  the  insane ;  but 
hitherto  there  has  been  no  trouble  since  we  provide  the  hospital,  the  atten- 
dants, matrons,  etc.,  and  the  state  simply  provides  the  commissioners  of 
lunacy. 

I  do  not  know  that  the  direct  question  has  ever  been  litigated  "Where 
does  the  power  of  the  city  end  and  where  does  the  power  of  the  state 
supervene  in  matters  which  might  be  properly  the  subject  of  control  by 
either"  ;  but  the  general  tendency  has  been  to  allow  the  city  to  handle  all 
those  matters  of  which  it  has  taken  control  hitherto.  .  .  . 

By  an  indirect  method  we  control  all  the  dairies  that  ship  milk  into  San 
Francisco.  The  board  of  heath  has  the  right  to  issue  permits  to  shippers  of 
milk  and  when  we  find  a  foul  dairy  outside  the  city  and  county  limits  we 
take  up  the  permit. 

The  whole  question  is  not  by  any  means  free  from  doubt  and  our  habit 
seems  to  have  been  to  follow  the  line  of  least  resistance  by  not  interfering 
with  one  another  but  to  jog  along,  the  city  doing  its  work  along  the  same 
lines  as  the  state  and  affording  mutual  support  in  the  enforcement  of  the 
law. 

1  Personal  letter  to  the  author  from  Mr.  Arthur  H.  Barendt,  May  27,  1915. 
«  [This  reference  is  to  the  board  which  has  jurisdiction  over  the  entire  state  and 
not  to  the  state-appointed  board  which  was  involved  in  the  Williamson  case.] 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA     295 

7s  the  Control  of  Public  Education  a  Municipal  Affair? 

It  will  be  recalled  that  long  before  the  passage  of  the  "munici- 
pal affairs"  amendment  it  had  been  decided  in  Kennedy  v.  Miller,1 
as  might  indeed  have  been  expected,  that  municipal  charters  were 
subject  to  and  controlled  by  general  laws  relating  to  the  matter 
of  public  education.  In  this  case  there  appears  to  have  been  no 
reason  why  the  court  should  have  gone  beyond  the  simple  declara- 
tion that  there  was  clear  conflict  between  the  general  law  regu- 
lating the  control  of  school  funds  and  the  provisions  of  the  free- 
holders' charter  of  San  Diego  upon  this  subject.  Under  the  rule 
applied  before  the  amendment  of  1896  a  law  of  general  application 
regulating  any  affair,  " municipal"  or  otherwise,  operated  to  subject 
to  its  control  any  provision  of  a  municipal  charter  that  conflicted 
with  it.  And  although  the  judgment  of  the  court  in  the  case  seems 
to  have  been  reached  almost  wholly  upon  this  basis,  yet  the  opinion 
rendered  did  in  point  of  fact  cover  a  much  wider  range  of  discussion 
than  was  necessary.  It  is  important  to  be  analyzed  in  some  de- 
tail at  this  point  not  only  because  of  its  description  of  the  peculiar 
system  of  educational  control  established  in  California  by  constitu- 
tional, statutory,  and  charter  provisions  but  also  because  of  the 
views  which  were  expressed  as  to  the  primary  responsibility  of  the 
state  rather  than  its  local  subdivisions  for  the  maintenance  and 
control  of  this  function. 

Referring  to  the  provisions  of  the  constitution  relating  to  educa- 
tion, the  view  was  expressed  by  the  court  that  article  IX  of  that  in- 
strument —  which  article  it  may  be  remarked  parenthetically  was 
not  altered  in  1896  —  "  makes  education  and  the  management 
and  control  of  the  public  schools  a  matter  of  state  care  and  super- 
vision." The  legislature,  among  other  things,  was  in  this  article 
directed  to  provide  for  "a  system  of  common  schools."  The 
court  declared  that  "the  term  'system'  itself  imports  a  unity  of 
purpose  as  well  as  an  entirety  of  operation,  and  the  direction  to 
the  legislature  to  provide  '&'  system  of  common  schools  means 

1  97  Cal.  429  (1893) ;  supra,  246.  See  also  Kennedy  ».  Board  of  Education, 
82  Cal.  483  (1890). 


296     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

one  system  which  shall  be  applicable  to  all  the  common  schools 
within  the  state." 

Referring  to  the  manner  in  which  this  obligation  had  been  per- 
formed by  the  legislature,  the  opinion  declared  : 

In  pursuance  of  this  direction,  the  legislature  has  enacted  chapter  III 
of  title  III,  part  III,  of  the  Political  Code,  wherein  the  system  outlined 
in  the  constitution  has  been  amplified,  and  provision  made  for  the  organ- 
ization of  school  districts,  and  the  election  of  officers  thereof,  as  well  as  of 
the  officers  authorized  by  the  constitution,  defining  their  powers  and 
duties,  and  also  providing  for  the  proper  application  of  the  revenue  from 
the  state  school  fund,  and  for  the  raising  of  additional  money  by  taxation 
for  the  support  of  the  common  schools. 

Section  1576  of  the  Political  Code  declares  that  "each  county,  city,  or 
incorporated  town,  unless  subdivided  by  the  legislative  authority  thereof, 
forms  a  school  district."  By  virtue  of  this  legislative  authority,  each 
school  district  becomes  a  public  corporation  (Estate  of  Bulmer,  59  Cal. 
131 ;  Hughes  v.  Ewing,  93  Cal.  414),  and  its  functions  and  powers  as  such 
corporation  are  those  which  are  given  to  it  by  the  act  under  which  it  is 
created.  .  .  . 

Section  1616  of  the  Political  Code  declares  that  "boards  of  education 
are  elected  in  cities  under  the  provisions  of  the  laws  governing  such  cities, 
and  their  powers  and  duties  are  as  prescribed  in  such  laws,  except  as 
otherwise  in  this  chapter  provided ;"  and  in  the  Municipal  Government 
Act  provision  has  been  made  for  boards  of  education  in  cities  that  may 
be  organized  under  that  act.  By  the  expression,  "the  laws  governing 
such  cities,"  is  meant  the  charter  of  the  city,  or  the  power  under  which 
the  city  acts  and  exercises  its  authority,  whether  such  power  be  such  as 
was  originally  conferred  by  special  charter  prior  to  the  adoption  of  the 
present  constitution,  or  such  as  has  been  conferred  by  the  general  law 
providing  for  the  organization  of  cities  and  accepted  by  the  city ;  or  such 
as  is  embraced  in  a  charter  framed  by  freeholders  of  its  own  selection, 
and  ratified  by  the  legislature. 

The  reasons  for  this  somewhat  complicated  system  of  educational 
control  are  historical.  At  the  time  when  the  constitution  of  1879 
was  adopted  and  when  these  general  provisions  of  law  were  enacted 
pursuant  to  its  mandate,  every  city  of  the  state  was  operating  under 
a  special  legislative  charter  that  made  provision  for  a  department 
of  education.  The  legislature  evidently  did  not  deem  it  advisable 
to  wipe  this  organization  entirely  out  of  existence.  Instead  of 
doing  so  it  simply  introduced  certain  important  elements  of  uni- 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      297 

>rmity.  Among  these  elements  was  that  which  provided  for  the 
incorporation  of  the  inhabitants  of  every  city  into  a  school  dis- 
trict separated  in  its  corporate  capacity  from  the  city  as  such.  But 
the  general  law  adopted  as  the  governing  body  of  every  such  city 
school  corporation  the  board  of  education  that  was,  or  should  be, 
created  by  its  charter.  And  it  was  further  provided  that  the 
powers  and  duties  of  such  boards,  as  set  forth  in  municipal  charters, 
should  remain  unaltered  except  as  otherwise  provided  in  the  general 
law  applicable  to  all  school  districts  whether  urban  or  rural.  It 
was  manifest,  therefore,  that  the  law  contemplated  that  some 
matters  relating  to  the  management  of  schools  should  be  deter- 
mined by  the  provisions  of  city  charters.  Acting  in  accordance 
with  this  contemplation,  the  legislature  provided  for  boards  of  edu- 
cation in  the  general  municipal  government  act  of  1883  —  an  act 
which  classified  the  cities  of  the  state  and  established  forms  of  gov- 
ernment for  the  several  classes  which  might  be  accepted  by  any  city 
upon  a  referendum  vote.  In  view  of  the  policy  thus  pursued  by  the 
legislature  in  the  matter  of  setting  up  a  system  of  common  schools, 
as  commanded  by  the  constitution,  it  could  not  have  been  held 
that  cities  drafting  freeholders'  charters  were  powerless  to  enact 
any  provisions  relating  to  public  education,  although  it  may  have 
been  that  their  powers  in  this  regard  were  in  fact  referable  to  the 
law  (which  adopted  charter  provisions  subject  to  important  quali- 
fications) rather  than  to  the  constitution  which  conferred  the  char- 
ter-making power. 

In  the  opinion  handed  down  in  the  case  under  review  the  court 
was  at  pains  to  assert  that  neither  the  provision  of  law  which  in- 
corporated school  districts  nor  that  which  adopted,  under  limita- 
tions, municipal  charter  requirements  relating  to  the  powers  and 
duties  of  boards  of  education  operated  to  relieve  such  requirements 
from  complete  subordination  to  every  provision  of  the  general 
law.  On  the  first  point  it  was  declared : 

The  legislative  declaration  that  every  incorporated  city  is  a  school 
district  does  not  import  into  the  organization  of  the  school  district  any  of 
the  provisions  of  the  city  charter,  or  limit  the  powers  and  functions  which, 
as  a  school  district,  it  has  by  virtue  of  the  Political  Code.  The  city  is  a 


298     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

corporation  distinct  from  that  of  the  school  district,  even  though  both 
are  designated  by  the  same  name,  and  embrace  the  same  territory.  The 
one  derives  its  authority  directly  from  the  legislature,  through  the  general 
law  providing  for  the  establishment  of  schools  throughout  the  state,  while 
the  authority  of  the  other  is  found  in  the  charter  under  which  it  is  organ- 
ized ;  and  even  though  the  charter  may  purport  to  define  the  powers  and 
duties  of  its  municipal  officers  in  reference  to  the  public  schools  in  the 
same  language  as  has  the  legislature  in  the  Political  Code,  yet  these  powers 
and  duties  are  referable  to  the  legislative  authority,  and  not  to  the  charter. 

On  the  second  point  the  opinion  recited: 

The  powers  and  duties  of  the  board  of  education  in  a  city  cannot 
trench  upon  the  system  that  the  legislature  has  provided  for  the  entire 
state,  since  the  charter  is  limited  in  its  operation  by  any  general  law  that 
may  be  passed  by  the  legislature,  and,  in  addition  thereto,  such  powers 
and  duties  are,  by  the  terms  of  the  section  in  which  they  are  authorized  to 
be  given,  limited  by  the  provisions  of  the  Political  Code. 

In  the  same  year  in  which  decision  was  made  in  the  Kennedy 
case  an  interesting  opinion  bearing  upon  the  functional  character 
of  education  was  rendered  in  the  case  of  In  re  Wetmore.1  Al- 
though it  was  not  manifest  that  the  precise  point  at  issue  in  this 
case  was  one  of  conflict  between  state  law  and  charter  provision, 
the  views  expressed  by  the  court  were  nevertheless  of  significance 
when  considered  in  connection  with  the  cases  that  arose  after  the 
introduction  into  the  constitution  of  the  famous  excepting  phrase. 
The  case  is  therefore  worthy  of  some  careful  study. 

In  February,  1889  the  freeholders'  charter  of  Oakland  was 
approved  by  the  legislature.  Its  provisions  touching  upon  the 
question  that  was  presented  to  the  court  in  the  Wetmore  case  were 
by  no  means  clear;  for  while  the  charter  vested  in  the  board  of 
education  —  a  board  provided  by  the  charter  and,  as  we  have  seen 
above,  recognized  by  the  Political  Code  of  the  state  —  authority 
"to  build  schoolhouses "  upon  plans  approved  by  the  board,  it 
expressly  denied  to  the  board  the  power  to  contract  debts  beyond 
current  annual  income  and  vested  in  the  city  council  the  power 
to  submit  to  the  voters  the  question  of  incurring  a  debt  for  the- 
construction  of  any  permanent  municipal  building  "the  cost  of 

1  99  Cal.  146.     1893. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      299 

rhich  in  addition  to  other  expenditures  of  the  city  will  exceed 
income  and  revenues  provided  in  any  one  year."     The  council 

ras  required  to  proceed  in  such  matter  "as  provided  in  section  18 
of  article  XI  of  the  constitution  of  this  state  and  general  law." 
In  the  Political  Code  it  was  provided  generally  that  county 
boards  of  supervisors,  upon  certification  from  any  district  board 
of  education  (and  this  included  such  a  board  as  that  created  by  the 
Oakland  charter)  to  the  effect  that  the  voters  had  approved,  as 
required  by  law,  a  bond  issue  for  school  building  construction, 
should  issue  bonds  in  the  name  of  such  district. 

In  March,  1889  the  legislature,  without  repealing  these  provi- 
sions of  the  Code,  enacted  a  law  authorizing  cities  as  such  to 
issue  bonds  for  the  construction  of  school  buildings.  In  1891 
Oakland,  acting  under  this  law,  which  was  apparently  adopted 
by  one  section  of  its  charter,  issued  bonds  for  this  purpose.  It 
was  contended  that  the  city  had  no  authority  to  issue  such  bonds 
"for  the  reason  that  the  management  of  its  schools  is  vested  in  a 
board  of  education,  and  that  any  bonds  to  be  issued  for  school 
purposes  must  be  authorized  by  that  body."  It  was  not,  however, 
clearly  disclosed  in  the  case  whether  the  contention  was  based 
upon  the  view  that  the  charter  vested  this  authority  in  the  board, 
or  upon  the  view  that  the  charter  provision,  which  apparently  con- 
ferred authority  to  issue  such  bonds  upon  the  city  council,  was  void 
as  being  in  conflict  with  the  Political  Code.  Indeed,  as  already 
mentioned,  the  precise  ground  of  contention  was  somewhat  vague. 
But  in  respect  to  the  character  of  education  as  a  municipal  function 
the  opinion  declared  in  part  as  follows : 

That  the  education  of  the  youth  is  properly  included  within  the  func- 
tions of  a  municipal  government  cannot  be  denied.  A  municipal  corpo- 
ration is  but  a  branch  of  the  state  government,  and  is  established  for  the 
purpose  of  aiding  the  legislature  in  making  provision  for  the  wants  and 
welfare  of  the  public  within  the  territory  for  which  it  is  organized,  and  it 
is  for  the  legislature  to  determine  the  extent  to  which  it  will  confer  upon 
such  corporation  any  power  to  aid  it  in  the  discharge  of  the  obligation 
which  the  constitution  has  imposed  upon  itself.  .  .  .  The  legislature  has 
made  provision  in  the  Political  Code  for  a  system  of  public  schools  through- 
out the  state,  and  in  the  Municipal  Government  Act,  which  was  enacted 


300     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

in  1883,  providing  for  the  organization  of  municipal  corporations,  it  has 
included  a  school  department  for  the  first  five  of  the  several  classes  of  mu- 
nicipal corporations  therein  provided  for.  In  each  of  the  freeholders'  char- 
ters that  has  been  approved  by  it  an  educational  department  has  been 
established  and  provision  made  for  education  and  for  the  exercise  of 
municipal  functions  in  reference  thereto.  As  school-houses  are  essential 
aids  in  the  promotion  of  education,  their  erection  is  but  incidental  to  the 
maintenance  of  the  schools,  and  falls  as  completely  within  the  functions 
of  a  municipal  government  as  does  the  erection  of  a  .hospital  for  its  indi- 
gent poor,  or  buildings  for  its  fire  engines ;  and  the  school-houses  when  so 
erected  are  as  fully  municipal  buildings  as  are  its  engine-houses  and  hos- 
pital buildings.  (Danielly  v.  Cabaniss,  52  Ga.  222 ;  Horton  v.  Mobile 
School  Commissioners,  43  Ala.  598.) 

In  1903,  ten  years  after  the  decision  of  Kennedy  v.  Miller  and 
the  Wetmore  case,  there  was  decided  by  the  supreme  court  of 
California  the  first  of  a  series  of  important  cases  dealing  specifi- 
cally with  the  question  as  to  whether  public  education  was  or  was 
not  a  municipal  affair  within  the  meaning  of  the  amendment  of 
1896.  Under  authority  of  an  act  of  1891  the  Santa  Barbara 
School  District,  a  corporation  created  by  general  law  and  covering 
practically  the  same  geographical  jurisdiction  as  the  city  proper, 
established  a  high  school.  In  1899  the  district  made  a  contract 
with  one  Hancock,  the  appellant  in  the  case  of  Hancock  v.  The 
Board  of  Education,1  to  be  principal  of  the  said  school  for  one  year 
beginning  in  September,  1899.  In  January,  1900  a  freeholders' 
charter,  which  provided  for  a  board  of  education,  went  into  effect 
in  the  city.2  The  charter  declared  that  the  new  board  should 
succeed  to  "all  the  property,  rights,  and  obligations  of  the  school 
trustees  of  the  Santa  Barbara  School  District  heretofore  existing." 

1  140  Cal.  554.     1903. 

2  It  ought  to  be  mentioned  in  this  connection,  perhaps,  although  the  matter  was 
not  referred  to  in  the  opinion,  that  a  specific  amendment  —  to  be  referred  to  at  a 
later  point  in  our  discussion  (infra,  Ch.   XI)  —  which  was  adopted  also  in  1896, 
expressly  conferred  upon  cities  framing  freeholders'  charters  the  power  to  provide 
"for  the  manner  in  which,  the  times  at  which,  and  the  terms  for  which  the  members 
of  boards  of  education  shall  be  elected  or  appointed,  and  the  number  which  shall 
constitute  any  one  of  such  boards."     There  could  be  no  question,  therefore,  of  the 
authority  of  Santa  Barbara  to  regulate  in  its  charter  at  least  these  enumerated 
matters  respecting  education. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      301 

ice  in  existence,  however,  the  charter  board  refused  to  recognize 
contract  of  employment  entered  into  by  the  old  board  with 
le  high  school  principal;  and  the  latter  brought  action  against 
school  district  (which  still  retained  its  corporate  character) 
>r  the  recovery  of  his  salary.  The  chief  point  of  contest  that  was 
le  seems  to  have  been  that  the  action  should  have  been  brought 
linst  the  city  as  such  instead  of  against  the  school  district, 
le  court  decided  against  this  contention,  and  in  doing  so  voice 
given  to  an  opinion  which  is  of  importance  because,  while  in 
meral  accord  with  the  opinion  in  Kennedy  v.  Miller,  it  appears 
be  almost  wholly  irreconcilable  with  the  views  upon  this  sub- 
which  were  expressed  in  the  Wetmore  case,  as  well  as  in  another 
iportant  case  decided  at  the  next  term  of  court.  The  opinion 
jcited : 

Every  city  constitutes  a  separate  school  district,  including  such  out- 
dng  territory  as  may  be  legally  attached  to  it.  (Pol.  Code,  sec.  1576.) 
The  Santa  Barbara  School  District  was  formed  under  the  state  law,  and 
as  there  is  nothing  in  the  record  to  show  that  it  has  ever  been  changed, 
dissolved,  or  discontinued,  it  must  be  presumed  that  it  still  exists.  A 
city  charter  adopted  under  the  provisions  of  the  constitution  has  no  effect 
whatever  upon  the  existence  or  legal  character  of  a  school  district  formed 
under  the  general  law.  The  school  system  is  a  matter  of  general  concern,  and 
not  a  municipal  affair.1  (Kennedy  v.  Miller,  97  Cal.  434.)  The  function 
of  the  city  under  the  charter  is  simply  to  furnish  the  officers  who  compose 
the  governing  body  of  the  district,  and  when  the  new  charter  was  adopted 
the  former  board  of  school  trustees  was  superseded  as  the  governing  body 
by  the  city  board  of  education.2  There  was  no  change  whatever  in  the 
existence  of  the  district,  but  simply  a  change  in  the  officers  who  governed 
it.  The  code  provides  that  the  trustees  of  every  school  district  may  sue 
and  be  sued  (Pol.  Code,  sec.  1575),  and  that  the  trustees  are  liable  in  their 
official  capacity  for  judgments  for  salaries  against  the  district.  (Pol.  Code, 
sec.  1623.)  Although  the  present  governing  body  is  called  a  board  of  edu- 
cation, yet  it  is  in  fact  a  board  of  trustees,  and  the  term  "board  of  educa- 
tion" is  simply  another  name  for  trustees.  These  sections,  authorizing 
the  trustees  to  sue  and  be  sued,  make  the  board  responsible  for  judgments, 
and  must  be  construed  to  apply  to  and  include  city  boards  of  education, 
as  well  as  the  boards  of  country  school  districts.  (Kennedy  v.  Miller,  97 
Cal.  434;  Board  of  Education  v.  Board  of  Trustees,  129  Cal.  606.)  It 

1  [The  italics  are  interpolated.]  2  [Supra,  300,  n.  2.] 


302  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

follows  that  an  action  can  be  maintained  against  the  board  of  education 
whenever  there  is  a  cause  of  action  against  it  in  existence,  and  that  the 
city  board  of  education,  as  the  successor  of  the  former  board  of  the  Santa 
Barbara  School  District,  is  bound  by  the  obligations  of  the  former  board, 
and  may  be  sued  thereon.  The  substitution  of  the  board  of  education  for 
the  school  board  had  no  greater  effect  upon  the  obligations  of  the  district 
than  would  the  coming  in  of  a  new  school  board  upon  the  expiration  of 
the  terms  of  the  old  members. 

It  is  to  be  noted  that  in  this  opinion  it  was  emphatically  de- 
clared that  "the  school  system  is  ...  not  a  municipal  affair." 

A  year  after  the  decision  of  the  Hancock  case  opinion  was 
handed  down  in  the  case  of  Law  v.  San  Francisco.1  This  case 
arose  out  of  a  taxpayer's  action  brought  to  restrain  the  city  of 
San  Francisco  from  issuing,  in  accordance  with  the  procedure  re- 
quired by  its  charter,  bonds  "for  the  erection  of  new  school-houses, 
for  improvements  to  existing  school-houses,  for  the  acquisition  of 
land  for  those  purposes,  and  of  additional  land  for  playgrounds 
of  established  schools."  Without  reference  to  the  Hancock 
case,  but  with  great  reliance  upon  the  earlier  Wetmore  case, 
it  was  specifically  held  by  the  court  that  these  enumerated  objects 
were  "municipal  affairs."  "It  follows,  therefore,"  the  opinion 
declared,  "that  the  city  authorities  were  justified  in  calling  for  a 
bonded  indebtedness  for  the  indicated  purposes,  and  that  the 
charter  provisions  in  this  regard  supersede  the  requirements  of 
the  General  Improvement  Act  of  1901  (Stats.  1901,  p.  27),  should 
conflict  be  found  to  exist  between  the  two." 

There  was  here  no  possibility  of  misconstruing  the  view  of  the 
court.  The  procedure  for  the  issue  of  bonds  had  been  taken  un- 
der charter  requirement,  not  in  accordance  with  the  provisions  of 
general  law.  The  validity  of  the  issue  was  called  into  question 
and  was  sustained  on  the  ground  that  the  issuance  of  bonds  for 
school  purposes  was  a  municipal  affair.  It  was  not  even  necessary 
to  inquire  specifically  whether  there  was  or  was  not  conflict  be- 
tween the  charter  provisions  and  the  general  law  upon  the  subject ; 
for  if  conflict  existed,  the  charter  provisions  superseded  and  were 
therefore  in  any  case  unimpeachable. 

1  144  Cal.  384.     1904. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      303 

The  issuance  of  bonds  for  school  construction  purposes  may 
doubtless  be  regarded  as  an  indispensable  part  of  the  function  of 
furnishing  educational  facilities  in  urban  communities.  There 
was  in  the  constitution  of  California  no  provision  which  could 
be  interpreted  to  confer  this  power  specifically  and  directly  upon 
cities  framing  freeholders'  charters.  The  authority  of  the  city 
to  regulate  this  matter  in  a  manner  contrary  to  state  law  could 
be  sustained  only  upon  the  ground  that  public  education  —  or  at 
least  the  financing  of  public  education  —  was  within  the  meaning 
of  the  constitutional  amendment  of  1896  a  municipal  rather  than 
a  state  affair.  And  such  it  obviously  was,  in  the  opinion  of  the 
court  as  handed  down  in  this  case. 

In  spite  of  the  article  of  the  constitution  which  in  Kennedy  v. 
Miller  x  the  court  had  declared  made  education  a  matter  of  "state 
care  and  supervision,"  the  doctrine  of  the  Law  case  might,  not 
without  much  justification,  have  been  taken  to  mean  that  in  the 
latest  view  of  the  court  the  control  of  public  education  in  cities  was 
a  municipal  affair  upon  which  the  legislature  in  conformity  with 
the  amendment  of  1896  might  not  enact  any  general  law  that 
would  control  the  provisions  of  a  municipal  charter.  This  doc- 
trine, however,  in  its  full  significance,  received  a  rude  setback  in 
the  case  of  Los  Angeles  City  School  District  v.  Longden.2  The 
School  District  of  Los  Angeles,  as  in  every  other  city  of  the  state, 
owed  its  origin  to  provisions  of  the  Political  Code.  The  free- 
holders' charter  of  Los  Angeles  recognized  the  existence  of  this 
corporation  but  expressly  denied  to  the  board  of  education  which 
it  established  as  the  governing  body  of  the  district,  and  expressly 
conferred  upon  the  city  council,  the  power  to  take  steps  for  the 
issuance  of  bonds  for  school  purposes.  This  was  a  power  which 
the  board  of  every  district  corporation  enjoyed  under  the  Code. 
Here  was  then  an  unmistakable  case  of  conflict  between  state 
law  and  charter  provision.  The  board  of  education,  acting  under 
authority  conferred  by  law  upon  the  distript  corporation,  took  all 
the  steps  necessary  for  a  bond  issue  up  to  the  point  where  the 
county  supervisors,  according  to  the  terms  of  the  law,  were  re- 

1  Supra,  295.  2  148  Cal.  380.     1905. 


304     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

quired  to  issue  bonds  upon  certification  of  the  board.  The  board 
of  supervisors  refused  to  act,  and  the  board  of  education  applied 
for  a  mandamus  to  compel  the  issue.  The  refusal  of  the  super- 
visors rested  on  the  ground  that  the  municipal  charter  prohibited 
the  board  of  education  from  taking  these  initiatory  steps  and  that, 
under  the  doctrine  of  the  Law  case,  the  charter  provisions  super- 
seded the  general  law  regulating  this  municipal  affair.  Referring  to 
the  Law  case  and  to  the  earlier  case  of  In  re  Wetmore,  the  court  said  : 

It  may  thus  be  taken  as  decided  and  settled  that  a  city,  as  such,  may 
bond  itself  for  public-school  purposes,  and  that  this  power  extends  to  all 
V  cases  when  the  object  is  in  furtherance,  and  not  in  derogation  of  or  in 
conflict  with  the  general  school  system  established  by  the  state.  For  in 
this  connection  it  must  be  remembered,  as  was  said  in  Hancock  v.  Board 
of  Education,  140  Cal.  554,  that  a  school  system  of  the  state  is  a  matter  of 
general  concern  and  not  a  municipal  affair.  It  may  be  well  to  dwell  upon 
this  distinction  with  more  particularity,  and  in  so  doing  to  point  out  the 
well-recognized  and  oft-repeated  difference  between  the  acts  of  the  city  as 
a  city  and  the  acts  of  the  school  district  which  may  comprise  the  same 
territory.  They  are  essentially  the  acts  of  two  different  corporate  entities 
—  the  powers  of  the  city  being  drawn  from  its  charter,  the  powers  of  the 
school  board  being  derived  from  the  provisions  of  the  Political  Code ;  the 
bonds  which  the  city  issues  being  municipal  bonds  of  that  city,  and  the 
power  to  issue  them  being  derived  from  the  charter  taken  with  the  general 
laws,  while  the  bonds  of  the  school  district  are  in  name  and  in  fact  school- 
district  bonds,  the  right  and  power  to  issue  them  being  derived  from  the 
Political  Code.  What,  therefore,  the  Wetmore  case  and  the  Law  case 
decided  was  that  the  erection  of  school-houses  within  the  corporate  limits 
of  a  municipality  was  justly  to  be  regarded  as  a  municipal  affair,  and  that 
the  city,  therefore,  as  such  could  create  a  bonded  indebtedness  for  such 
and  like  purposes,  even  though  power  to  do  the  same  thing  was,  under  the 
general  school  system  of  the  state,  vested  in  a  school  district  which,  while 
occupying  the  same  territory  as  that  of  the  city,  was  still  in  point  of  law  a 
distinct  corporate  entity.  It  follows,  therefore,  that  the  declaration  of 
this  court  that  the  issuing  of  bonds  for  the  building  of  school-houses  by  a 
city  is  a  municipal  affair  constitutes  in  no  sense  a  negation  of  the  fact  that 
another  corporate  entity  —  the  school  district  —  may  under  the  general 
school  system  of  the  state,  do  the  same  thing  for  the  same  purpose. 

Moreover  it  should  be* finally  emphasized  that  the  power  of  a  munici- 
pality in  this  regard  can  only  run  current  with,  and  never  counter  to,  the 
general  laws  of  the  state  touching  the  common-school  system.  To  such 
general  laws,  if  conflict  arises,  all  municipal  laws  must  be  subservient. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       305 

The  opinion  thus  uttered  took  most  of  the  vitality  out  of  the 
decision  of  the  Law  case,  so  far  as  that  case  was  an  apparent  author- 
ity for  the  assertion  that  education  was  a  municipal  affair  and 
that  charter  provisions  upon  this  subject  superseded  the  general 
laws  of  the  state.  Indeed,  in  spite  of  the  fact  that  the  court  at- 
tempted to  reconcile  the  two  cases,  it  is  not  at  all  clear  but  that 
the  later  case  completely  overruled  the  earlier.  It  was  not  as 
though  the  Law  case  had  concerned  only  a  question  of  the  power 
of  the  city  as  such  to  issue  bonds  for  school  purposes.  Had  this 
been  the  only  question  involved  it  might  have  been  held  that 
the  case  went  no  further  than  to  assert  that  the  city  might,  as  long" 
as  its  action  did  not  run  counter  to  the  laws  of  the  state,  exercise 
this  power  in  addition  to  and  in  furtherance  of  a  similar  power 
vested  in  another  authority  by  the  state.  But  it  was  evidently 
contended  in  that  case  that,  even  though  the  bond  issue  was 
valid  in  every  other  respect,  it  was  nevertheless  void  because  in 
the  issue  of  the  bonds  in  question  the  city  had  proceeded  under  its 
charter  provisions  instead  of  under  the  general  law  of  the  state 
governing  procedure  in  such  matters.  The  court  did  not  hold  that 
the  law  in  question  did  not  purport  to  regulate  a  bond  issue  of 
this  kind  or  that  the  procedure  required  by  the  law  and  that 
required  by  the  charter  were  practically  identical.  On  the  con- 
trary it  was  specifically  declared  that  the  "  charter  provisions  in 
this  regard  supersede  the  requirements"  of  the  general  law,  " should 
conflict  be  found  to  exist  between  them." 

The  later  case,  which  returned  to  the  view  expressed  in  the  Han- 
cock case,  must  of  course  be  taken  as  defining  the  status  of  the  law 
upon  this  subject.  But  even  in  the  opinion  rendered  in  the  Los 
Angeles  case  it  is  somewhat  difficult  to  reconcile  the  statement  to 
the  effect  that  the  "school  system  of  the  state"  —  including  natu- 
rally the  erection  of  school  buildings  without  which  no  school 
system  would  be  possible  —  "is  a  matter  of  general  concern  and 
not  a  municipal  affair"  with  the  assertion  in  the  same  opinion 
that  the  "erection  of  school-houses  .  .  .  was  justly  to  be  regarded 
as  a  municipal  affair."  The  constitution  clearly  implied  that 
"affairs"  were  municipal  or  not  municipal  —  that  all  affairs  that 


306  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

were  subject  to  control  by  law  could  be  separated  into  one  or  the 
other  of  these  categories.  It  would  have  conduced  to  clearness 
had  the  court  declared,  as  Judge  McFarland  declared  in  respect 
to  matters  relating  to  the  public  health,1  that  public  education  was 
in  all  of  its  aspects,  including  the  erection  of  school  buildings,  a 
state  and  not  a  municipal  affair ;  that  while  the  legislature  was  in 
effect  prohibited  from  passing  laws  relating  to  municipal  affairs 
(except  for  cities  under  the  general  municipal  corporation  act), 
cities  were  not  prohibited  from  regulating  state  affairs  within 
their  jurisdiction  except  in  so  far  as  their  regulations  collided  with 
some  general  law,  in  which  event  the  charter  provision  became 
"subject  to  and  controlled  by"  the  general  law;2  and  that  in 
consequence  a  city  as  such  might  under  charter  allowance  issue 
bonds  for  the  erection  of  school  buildings  —  a  state  affair  — 
as  long  as  in  the  exercise  of  such  power  it  conformed  to  any  and 
all  general  laws  of  the  state  that  were  pertinent.  This  was  in 
effect  the  purport  of  the  decision,  no  matter  how  earnestly  the  court 
attempted  to  square  its  conflicting  utterances  upon  the  subject. 

Moreover,  this  was  certainly  more  nearly  in  harmony  with  the 
spirit  and  letter  of  the  provisions  contained  in  the  article  of  the 
constitution  relating  to  education,  to  which  provisions  the  court 
apparently  gave  little  if  any  consideration  in  these  cases.  The 
opinions  that  were  handed  down  seemed  to  turn  solely  upon  the 
construction  of  the  " municipal  affairs"  amendment  without 
reference  to  any  other  constitutional  provisions. 

Finally  it  is  to  be  remarked  that  there  was  presented  in  the  case 
of  the  Pasadena  School  District  v.  Pasadena  3  a  somewhat  unique 
aspect  of  the  complicated  problem  in  respect  to  the  control  of 
public  education  in  California.  The  building  code  of  the  city, 
enacted  under  authority  of  the  freeholders'  charter,  was  elaborate 
in  character.  Among  other  things  it  contained  the  usual  require- 
ments that  plans  for  the  construction  of  a  building  should  be  sub- 
mitted to  the  building  inspector  for  approval.  The  charter  had 
not  changed  the  governing  body  of  the  school  district,  created  by 

1  Supra,  289.  » On  this  point  see  the  following  chapter. 

•  166  Cal.  7.     1913. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      307 


general  law,  and  had  made  no  attempt  to  regulate  its  powers  and 
duties.  The  school  trustees  of  the  district  were  proceeding  to  the 
erection  of  a  $400,000  school-house  without  submitting  their  plans 
to  the  municipal  authorities  as  required  by  ordinance  enacted  in 
pursuance  of  the  charter.  The  city  sought  to  restrain  them.  The 
court  said: 

It  is  not  claimed  that  there  is  any  general  law  conferring  police  power 
upon  the  trustees  of  school  districts  except  as  it  is  insisted  that  these  pro- 
visions of  the  Political  Code  have  that  effect.  Nor  as  to  these  code  pro- 
visions is  it  claimed  that  they  expressly  give  any  power  to  such  trustees 
or  enjoin  on  them  the  duty  of  adopting  sanitary  or  building  regulations 
or  regulations  in  the  nature  of  provisions  for  the  public  health,  comfort, 
and  safety  in  the  construction  of  school  buildings.  It  is  insisted  only 
that  under  the  general  power  to  control  school  affairs  and  the  particular 
authority  to  plan  and  erect  school  buildings  there  is  impliedly  conferred  full 
police  power  as  to  all  matters  pertaining  to  the  erection  of  such  buildings. 

We  cannot  agree  with  this  view  of  appellant.  School  districts  are 
quasi  municipal  corporations  of  the  most  limited  power  known  to  the  law. 
Their  trustees  have  special  powers  and  cannot  exceed  the  limit.  .  .  . 
Power  in  the  school  trustees  to  determine  for  themselves  all  matters  con- 
cerning the  school  structures  to  be  erected  to  the  exclusion  of  the  right  of 
the  municipality  to  impose  police  regulations  cannot  be  implied  from  a 
grant  solely  of  power  to  control  the  school  affairs  of  the  district  and  plan 
and  build  school-houses.  The  constitutional  right  of  the  municipality  to 
reasonable  police  regulations  within  its  territorial  limits,  while  it  may  be 
controlled  by  a  general  law,  still  such  law  must  be,  as  is  said  in  Ex  parte 
CampbeU,  74  Cal.  20  (5  Am.  St.  Rep.  418;  15  Pac.  318,  321),  a  positive 
and  general  law  upon  that  subject.  The  power  conferred  on  the  trustees 
of  the  school  district  to  erect  school-houses  is  to  be  taken  only  as  a  grant 
of  power  to  effectually  carry  out  the  purpose  of  their  creation.  As  a 
public  agency  of  the  state  the  trustees  would  have  no  such  power  unless 
it  was  specifically  granted.  As  granted  it  is  no  different  as  a  power  from 
what  is  possessed  by  other  corporations  as  far  as  controlling  corporate 
property  and  the  right  to  erect  structures  thereon  is  concerned,  nor  differ- 
ent from  the  right  which  the  owners  of  land  have  to  control  it  and  erect 
buildings  upon  it.  The  erection  of  school  buildings  necessitates  the  mak- 
ing of  plans  therefor  just  the  same  as  it  is  necessary  for  private  corpo- 
rations or  individuals  to  prepare  them.  These  latter  when  their  structures 
are  to  be  erected  in  the  city  must  prepare  their  plans  therefor  according 
to  the  building  regulations  thereof  and  submit  them  for  inspection  to  the 
municipality  so  that  the  regulations  which  the  city  imposes  may  be  con- 


308     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

formed  to.  And  as  we  do  not  think  the  provisions  of  the  school  law  in- 
voked by  appellant  constitute  a  general  law  relieving  it  from  compliance 
with  the  building  regulations  of  the  city  of  Pasadena,  it  was  required  to 
submit  itself  to  and  be  governed  by  them. 

So  much  for  the  view  of  the  court  upon  the  somewhat  unusual 
question  involved  in  this  case. 

It  is  manifest  that  from  the  decisions  of  the  California  court 
upon  this  subject  it  is  impossible  to  draw  any  very  satisfac- 
tory conclusions.  The  complicated  combination  of  control  over 
matters  pertaining  to  education  by  state  law  and  charter  provi- 
sion has  gone  on  for  many  years  with  the  occasional  judicial  con- 
troversies noted.  It  is  doubtless  in  practice  and  in  fact  no  more 
complicated  a  scheme  of  control  than  that  which  prevails  in  many 
a  state  in  which  there  can  be  no  constitutional  question  about  the 
supremacy  of  state  control.  But  to  those  who  have  affection  for 
the  accuracy  and  definiteness  of  legal  principles  it  must  appear 
that  the  law  is  in  a  woeful  state  of  unsatisf action ;  and  it  must 
appear  also  that  should  home  rule  cities  attempt  to  overstep  at 
numerous  possible  points  the  line  of  conventional  and  customary 
control,  the  courts  would  be  compelled  to  take  a  more  definite  and 
understandable  position. 

It  may  be  remarked  in  conclusion  that  certain  specified  powers 
over  matters  pertaining  to  education  have  been  conferred  upon 
the  cities  of  California  under  freeholders'  charters;  but  these 
will  be  discussed  in  a  later  and  what  seems  to  be  a  more  appro- 
priate connection.1 

Is  the  Control  of  Privately  Owned  Public   Utilities  a  Municipal 

Affair? 

In  1901  the  city  of  Pasadena  became  organized  under  a  free- 
holders' charter.  This  charter  apparently  vested  in  the  legisla- 
tive authorities  of  the  city  full  control  over  its  streets  and  high- 
ways including  the  right  to  determine  what  portions  thereof 
should  be  occupied  by  telegraph  and  telephone  poles  and  wires.2 

1  Infra,  371.  «  On  this  point  see  infra,  345  ff. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       309 

In  1905  the  legislature  reenacted  a  section  of  the  Civil  Code  which 
declared  that  "  telegraph  and  telephone  corporations  may  con- 
struct lines  of  telegraph  or  telephone  lines  along  and  upon  any 
public  road  or  highway,  .  .  .  and  may  erect  poles,  posts,  piers, 
or  abutments  for  supporting  the  insulators,  wires,  or  other  neces- 
sary fixtures  of  their  lines,  in  such  manner  and  at  such  points  as 
not  to  incommode  the  public  uses  of  the  road  or  highway."  Sub- 
sequent to  the  reenactment  of  this  section  an  ordinance  was  passed 
in  Pasadena  which  made  it  unlawful  to  erect  or  maintain  telegraph 
or  telephone  poles  in  the  streets  for  use  in  "  doing  local  or  intrastate 
business  without  a  franchise  or  privilege  therefor  from  the  city." 
In  the  case  of  the  Sunset  Telephone  &  Telegraph  Co.  v.  Pasa- 
dena l  the  question  was  raised  whether  or  not  the  regulation  of 
telegraph  and  telephone  poles  in  a  city  under  a  freeholders7  charter 
was  a  municipal  affair  and  as  such  not  "subject  to  and  controlled 
by"  a  general  law  of  the  state  upon  the  subject.  After  a  somewhat 
lengthy  disquisition  upon  certain  matters  unrelated  to  the  point 
that  is  of  interest  in  this  connection,  the  court  declared  as  follows : 

Are  the  matters  referred  to  "municipal  affairs"  within  the  meaning  of 
those  words  as  they  are  used  in  section  6  of  article  XI  of  the  constitution  ? 
There  has  been  much  discussion  in  our  decisions  as  to  what  matters  are 
embraced  in  this  term,  and  it  has  been  said  that  it  is  very  difficult,  if  not 
impossible,  to  give  a  general  definition  clearly  defining  the  term  "munici- 
pal affairs"  and  its  scope.  But  we  can  see  very  little  reason  in  the  argu- 
ment that  the  question  whether  and  to  what  extent  the  streets  of  a  munici- 
pality shall  be  subjected  to  such  secondary  uses  as  the  maintenance  therein 
of  telegraph  and  telephone  wires,  the  primary  purpose  for  which  highways 
are  established  being  the  convenience  of  public  travel,  and  such  secondary 
uses  permanently  excluding  the  public  from  using  for  such  purpose  the 
portions  occupied  for  such  uses,  is  not  a  municipal  affair.  If  the  provisions 
of  not  only  the  many  freeholders'  charters  of  this  state  but  also  those  of 
the  General  Municipal  Corporation  Act  and  other  statutes  are  to  be  given 
any  effect  in  the  consideration  of  this  question,  they  demonstrate  the 
existence  of  practically  a  universal  idea  that  such  matters  are  principally 
of  local  concern,  and  should  be  within  the  exclusive  control  of  the  munici- 
pality. Even  in  the  case  of  the  ordinary  commercial  railroad,  we  find 
legislative  recognition  of  the  fact  that  the  question,  whether  such  a  railroad 
should  be  allowed  to  occupy  for  its  tracks  any  street,  alley  or  highway 

1  161  Cal.  265.     1911. 


310     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

within  a  municipality,  is  one  of  such  concern  to  such  municipality  that  its 
consent  should  be  a  prerequisite.  ...  As  said  by  learned  counsel  for 
the  defendants,  "the  legislature  has  consistently  recognized  and  treated 
the  control  of  municipal  streets  by  municipalities  as  a  local  or  municipal 
affair  as  distinguished  from  a  state  affair."  It  is  unquestioned  that  the 
opening,  widening,  and  vacating  the  streets  of  a  municipality  is  purely  a 
municipal  affair.  (See  Byrne  v.  Drain,  127  Cal.  663,  667.)  It  would 
seem  to  be  equally  true  that  the  question  to  what  extent  and  upon  what 
terms  the  primary  use  of  these  streets,  which  are  constructed  and  main- 
tained by  the  people  of  the  city  for  use  in  common  by  the  public  for  pur- 
poses of  travel,  shall  be  subject  to  secondary  uses  completely  excluding 
any  use  at  all  by  the  traveling  public  of  the  portions  devoted  to  such 
secondary  use,  is  also  a  municipal  affair,  within  the  meaning  of  our  con- 
stitutional provision.  .  .  . 

In  the  face  of  the  long  usage  in  such  matters,  by  virtue  of  which  this 
power  has  so  frequently  been  regarded  as  one  appropriate  for  a  munici- 
pality to  possess,  it  would  be  difficult  to  find  warrant  for  the  conclusion 
that,  although  such  power  is  in  terms  conferred  by  a  charter,  it  is  never- 
theless not  a  municipal  affair  within  the  meaning  of  the  constitution. 
That  any  citizen  in  the  state  may  be  interested  in  the  maintenance  and 
operation  of  a  telephone  system  in  the  city  of  Pasadena,  to  the  extent  that 
he  may  desire  "the  quick  and  ready  communication  afforded  by  the  tel- 
ephone" with  some  resident  thereof,  is  doubtless  true,  but  we  do  not  see 
that  this  affects  the  question  whether  the  extent  to  which  portions  of  the 
streets  of  Pasadena  may  be  exclusively  occupied  by  telegraph  and  tel- 
ephone companies  is  a  municipal  affair.  It  may,  however,  be  suggested 
that  no  persons  can  be  more  interested  in  having  the  quickest  and  most 
efficient  method  of  communication  available  between  Pasadena  and  the 
rest  of  the  state  than  the  people  of  Pasadena  themselves,  and  it  is  not 
likely  that  any  municipality  will  insist  upon  such  arbitrary  and  unrea- 
sonable conditions  in  the  matter  of  the  use  of  its  streets,  as  will  result 
in  cutting  it  off  from  such  method  of  communication. 

The  matters  referred  to  being  "municipal  affairs"  within  the  meaning 
of  our  constitutional  provision,  the  charter  provisions  vesting  control  in 
the  city  of  Pasadena  are  not  subject  to  general  laws,  and  the  reenactment 
of  section  536  of  the  Civil  Code  in  1905,  by  which  certain  rights  in  the 
public  highways  were  granted  to  telephone  companies,  conferred  no  right 
upon  the  plaintiff  so  far  as  the  streets  of  Pasadena  were  concerned. 

It  will  be  observed  that  the  "matters"   that  were  here  held 

j    to  be  municipal  affairs  were  the  conditions  under  which  a  public 

service  corporation  might  make  peculiar  uses  of  the  public  streets. 

The  city  demanded  a  local  franchise  where  the  state  law  apparently 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       311 

conferred  a  right  without  such  franchise.  The  court  did  not  dis- 
cuss the  nature  or  extent  of  the  franchise  required  by  the  city.  It 
may  have  been  a  simple  grant  regulating  the  manner  in  which 
the  streets  might  be  occupied  or  an  elaborate  contract  containing 
detailed  provisions  in  respect  to  rates,  service,  compensation  to 
the  city,  and  the  conduct  of  the  business  of  the  corporation. 
Whether  it  was  the  one  or  the  other  does  not  appear.  But  it 
would  seem  that  under  the  unguarded  doctrine  of  the  case  the 
right  of  the  city  to  exercise  control  over  public  utility  corpora- 
tions in  a  manner  contrary  to  the  requirements  of  state  laws  was 
fairly  implied. 

The  Los  Angeles  charter  of  1889  contained  few  provisions  on 
the  subject  of  public  utility  control 1  until  an  amendment  of 
1905  2  enumerated  certain  provisions  that  every  franchise  must 
contain.  An  amendment  of  1911  created  a  public  utilities  com- 
mission endowed  with  elaborate  powers  of  supervision.3  In  the 
City  of  Los  Angeles  v.  Davidson4  question  was  raised  as  to  whether 
a  street  railway  franchise  "struck  off,  sold,  and  awarded"  to  a 
person  by  the  council  was  or  was  not  void  under  the  provisions  of 
a  state  law  of  1901,  as  amended  in  1903,  which  required  that 
franchises  should  be  granted  only  "by  ordinance."  The  city 
charter  provided  that  ordinances  should  be  approved  by  the  mayor 
(which  was  not  done  in  this  instance)  and  the  court  declared  that 
"the  amendment  of  1901  by  the  act  of  1903  must  be  construed  in 
connection  with  the  provisions  of  the  charter ; "  and  so  construed 
it  was  held  that  "the  franchise  here  in  question  should  finally 
pass  from  the  sovereign  to  the  individual  only  by  an  ordinance 
approved  by  the  mayor." 

Again  in  the  case  of  the  Los  Angeles  Railway  Co.  v.  Los  Angeles,5 
a  state  law 6  was  construed  and  applied  to  determine  the  question 
whether  a  franchise  granted  by  the  city  had  been  forfeited  by  rea- 
son of  the  failure  of  the  company  to  complete  the  work  of  con- 
struction within  the  time  prescribed  in  the  franchise  contract. 

1  In  the  original  charter,  see  Art.  Ill,  sec.  31. 

8  Art  I,  sec.  25,  as  amended  in  1911,  sees.  40,  41. 

«  Art.  XV.  *  150  Cal.  59.     1906. 

6  152  Cal.  242.     1907.  «  Civil  Code,  sec.  502. 


312  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  may  not  be  inappropriate  to  call  attention  once  more  to 
the  curious  fact  that  the  constitution  (article  eleven,  section  six) 
very  clearly  declared  that  not  only  the  "charters  thereof"  but 
also  "cities  and  towns  heretofore  or  hereafter  organized"  should 
be  "subject  to  and  controlled  by  general  laws  except  in  munici- 
pal affairs."  Los  Angeles  was  certainly  a  city  heretofore  as  well 
as  hereafter  organized.  Its  freeholders'  charter  had  not  expressly 
adopted  the  state  laws  relating  to  public  utilities.  And  in  con- 
sequence this  question  may  not  unreasonably  be  asked :  If  the 
regulation  of  public  service  corporations  was  a  municipal  affair, 
of  what  pertinence  were  the  state  laws  upon  this  subject,  since 
they  could  not  subject  the  city  of  Los  Angeles  to  their  control? 
In  other  words,  should  it  not  have  been  declared  that  the  state 
laws  had  no  applicableness  and  that  the  city  itself  was  culpably 
negligent  in  having  failed  to  provide  for  the  regulation  of  utilities 
through  the  medium  of  its  own  charter  in  view  of  the  fact  that 
such  regulation  was  a  municipal  affair  ?  This  would  seem  to  have 
been  the  logical  and  reasonable  interpretation  of  the  constitu- 
tional provision  under  review.  But  it  is  an  interpretation  which 
appears  to  have  occurred  neither  to  the  court  nor  to  counsel,  so 
far  at  least  as  the  record  of  these  cases  discloses. 

More  than  this,  however,  in  the  course  of  the  opinion  handed 
down  in  the  case  last  mentioned,  the  court  made  one  declaration 
which  completely  unsettled  the  whole  question  of  the  relation 
between  state  laws  and  charter  provisions  relating  to  the  matter 
of  public  utility  control.  It  was  expressly  declared  that  "the 
city  in  granting  a  street  railway  franchise  is  but  an  agency  of  the 
state,  and  if  there  were  conflict  between  the  ordinance  containing 
the  grant  and  the  general  laws  of  the  state,  the  latter  would  govern." 
This  declaration  was  doubtless  not'  essential  to  the  decision  of  the 
case  since  it  was  found  that  the  ordinance  was  in  complete  com- 
pliance with  the  requirements  of  the  law.  But  it  raises  the  whole 
question  as  to  whether  the  control  of  public  utilities  is  a  state  or  a 
municipal  affair ;  and  it  appears  to  say  that  this  is  a  state  affair. 
This  is  apparently  in  absolute  conflict  with  the  decision  of  the 
Sunset  Telephone  &  Telegraph  case,  unless  it  was  intended  by  that 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      313 

case  merely  to  assert  that  the  control  over  the  uses  of  streets  by 
a  public  service  corporation  was  a  municipal  affair.  In  view  of 
the  fact,  however,  that  the  control  of  the  uses  of  streets  cannot 
possibly  be  separated  from  the  general  control  over  utilities  (seeing 
that  one  of  the  primary  reasons  lor  such  general  control  arises 
out  of  the  peculiar  uses  that  are  made  of  the  public  highways), 
it  is  manifest  that  this  is  an  infinitesimal  line  of  distinction. 

The  pronouncement  of  the  court  in  the  Los  Angeles  Railway 
case  is  the  last  word  in  California  upon  this  subject  of  conflict 
between  state  laws  and  charter  provisions.  In  the  absence  of 
more  specific  determination  it  may  perhaps  be  taken  to  mean 
that  the  state  legislature  might,  if  it  chose,  occupy  the  entire  field 
of  governmental  regulation  and  control  over  municipal  public 
utilities  (except  as  to  the  fixing  of  rates  for  certain  utilities l  and 
except  as  to  the  matter  of  municipal  ownership2),  and  that  some 
of  the  provisions  relating  to  such  utilities  which  are  in  fact  found 
in  the  charters  of  numerous  California  cities  are  of  legal  validity 
simply  and  solely  because  the  legislature  hi  its  grace  has  not  seen 
fit  to  preempt  the  field  of  possible  control. 

7s  the  Regulation  of  Matters  pertaining  to  the  Removal  of  City 
Officers  a  Municipal  Affair  f 

In  1897  application  was  made  to  the  supreme  court  of  Cali- 
fornia for  a  writ  of  prohibition  directing  the  board  of  trustees  of 
the  City  of  Sacramento  not  to  place  upon  trial  before  them  the 
superintendent  of  streets  upon  charges  of  incompetency,  neglect 
of  duty,  and  violation  of  charter  provisions  prohibiting  a  city 
official  from  being  interested  in  municipal  contracts.  The  free- 
holders' charter  of  the  city  authorized  such  an  administrative  trial 
and  provided  that  an  official  found  to  be  interested  in  municipal 
contracts  should  forfeit  his  office  and  be  forever  disqualified  from 
holding  any  position  in  the  city  service. 

In  the  case  of  Croly  v.  City  of  Sacramento 3  it  was  contended, 
among  other  things,  that  the  charter  provision  authorizing  such 

1  Infra,  345  ff.  »  Infra,  355  ff.  '119  Cal.  229.     1897. 


314  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

trial  was  void  because  the  Penal  Code  of  the  state  provided  for  the 
trial  of  civil  officials  for  the  offenses  in  question.  The  latter 
point,  however,  which  clearly  raised  the  question  of  conflict  be- 
tween state  law  and  charter  provisions  was  not  clearly  discussed 
by  the  court  in  the  opinion  that  was  rendered.  The  argument 
turned  rather  upon  a  consideration,  without  regard  to  any  ques- 
tion of  conflicting  state  law,  of  whether  the  city  enjoyed  the  power 
under  a  freeholders'  charter  of  providing  for  the  removal  and 
punishment  of  officers  found  guilty  of  the  enumerated  offenses. 
It  is  probable,  in  any  case,  that  the  municipal  affairs  amendment 
would  not  have  been  applicable,  since  the  laws  in  question  ante- 
dated the  charter  of  Sacramento. 

In  Coffey  v.  Superior  Court l  there  was  involved  the  question  of 
the  authority  of  a  state  tribunal  to  try  the  chief  of  police  of  Sacra- 
mento who  had  been  indicted  by  the  grand  jury  "for  wilful  and 
corrupt  misconduct  in  office"  based  upon  his  failure  to  suppress 
gambling.  A  provision  in  the  Penal  Code  of  the  state  conferred 
jurisdiction  upon  the  superior  courts  to  entertain  proceedings  for 
the  removal  of  municipal  officers.  The  freeholders'  charter  of  the 
city  contained  different  provisions  upon  this  subject.  It  was 
contended  that  the  charter  requirement  superseded  that  of  the 
Code  and  that  the  removal  of  municipal  officers  was  a  municipal 
affair  that  could  not  be  controlled  by  general  laws.  It  was  held, 
however,  that  the  charter  did  not  purport  to  confer  exclusive 
jurisdiction  upon  the  municipal  authority  vested  with  the  power 
to  make  removals.  "It  is  not  at  all  unusual,"  said  the  court, 
"for  different  tribunals  to  have  concurrent  jurisdiction  over  the 
same  subject-matter,  the  same  parties,  and  be  empowered  to  grant 
the  same  relief,  and,  in  our  judgment,  that  is  the  condition  here." 
There  was  in  consequence  no  inconsistency  between  the  provi- 
sions of  the  charter  and  those  of  the  law.  It  was  asserted,  never- 
theless, in  this  connection  that  "the  provisions  of  the  Penal  Code 
constitute  a  general  law  applicable  to  all  municipal  corporations, 
whether  created  by  freeholders'  charter,  existing  under  special 
charter  granted  prior  to  the  adoption  of  the  present  constitution, 

1  147  Cal.  525.     1905. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA      315 

or  organized  under  the  general  municipal  act."  Whether  the 
court  intended  by  this  to  declare  that  any  and  every  provision  of 
the  Penal  Code  was  applicable  to  all  cities  regardless  of  any  con- 
flict it  is  difficult  to  say.  The  point  was  in  fact  directly  and  inten- 
tionally left  unsettled,  for  the  opinion  recited : 

Whether  the  removal  of  the  petitioner  is  or  is  not  a  "municipal  affair'* 
has  been  largely  discussed  by  counsel  on  both  sides,  but  we  do  not  perceive 
that  the  solution  of  that  question  is  germane  to  the  case.  The  general  law 
which  confers  jurisdiction  on  the  superior  court  to  entertain  proceedings 
for  the  removal  of  municipal  officers  does  not  thereby  render  the  charter 
provision  conferring  similar  jurisdiction  on  the  board  of  trustees  "subject 
to  and  controlled  by"  the  general  law.  To  be  "subject  to"  is  "to  become 
subservient  to"  or  "subordinate  to,"  and  to  control  is  denned  as  "to  ex- 
ercise a  directing,  restraining,  or  governing  influence  over ;  to  direct,  to 
counteract,  to  regulate."  (Century  Dictionary.) 

The  general  law  does  not  have  this  effect.  That  law,  conceding  that 
the  removal  of  municipal  officers  is  purely  a  "municipal  affair,"  does  not 
assume  to  subordinate  or  make  subservient  the  jurisdiction  conferred  on 
the  trustees  by  the  charter  to  remove  delinquent  officers,  or  to  control, 
govern,  direct,  or  regulate  it.  The  jurisdiction  under  the  charter  is 
exercised  untrammeled,  unrestrained,  and  uncontrolled  by  the  fact  that 
jurisdiction  on  the  subject  is  also  conferred  on  the  superior  court  under 
the  general  law.  The  jurisdiction  of  both  is  consistent  and  concurrent. 

It  was  not,  therefore,  specifically  declared  that  the  removal  of 
municipal  officers  was  a  municipal  affair  which  would  not  be  sub- 
ject to  general  law  in  the  event  that  actual  conflict  had  existed 
between  the  law  and  the  charter. 

Of  somewhat  the  same  purport  was  the  case  of  McKannay  v. 
Horton,1  which  involved  the  validity  of  the  removal  of  Eugene  E. 
Schmitz  from  the  office  of  mayor  of  San  Francisco  after  the  noto- 
rious Reuff-Schmitz  scandal  of  1906-07.  Although  convicted  of 
a  felony,  the  crime  of  extortion,  Schmitz  still  attempted  to  exer- 
cise the  powers  of  his  office  from  the  county  jail  in  which  he  was 
imprisoned.  Both  the  charter  and  the  Political  Code  provided 
that  such  an  office  became  vacant  upon  the  conviction  of  its  in^ 
cumbent  of  a  felony.  The  court  held  that  the  conviction  of 
Schmitz  had  operated  to  vacate  the  office  of  mayor;  but  it  was 

1  151  Cal.  711.     1907. 


316  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

not  indicated  whether  this  resulted  from  the  provision  of  the 
charter  or  that  of  the  law.1 

In  1906  —  and  therefore  after  the  development  of  the  circum- 
stances that  gave  rise  to  the  Coffey  and  the  McKannay  cases  —  a 
constitutional  amendment  was  adopted  which  added  a  proviso  to 
section  sixteen  of  article  twenty,  a  section  that  related  generally 
to  terms  of  office.  This  proviso  declared : 

That  in  the  case  of  any  officer  or  employee  of  any  municipality  gov- 
erned under  a  legally  adopted  charter,  the  provisions  of  such  charter  with 
reference  to  the  tenure  of  office  or  the  dismissal  from  office  of  any  such 
officer  or  employee  shall  control. 

In  Craig  v.  Superior  Court 2  application  was  made  for  a  writ  of 
prohibition  directing  the  lower  court  not  to  proceed  to  the  trial  of 
a  captain  of  police  of  the  city  of  Stockton  upon  an  accusation 
presented  by  a  grand  jury  under  provisions  of  the  Penal  Code 
relating  to  the  removal  of  municipal  and  other  officers  for  mis- 
conduct in  office.  The  court  granted  the  writ  prayed  for  and  in 
doing  so  expressed  the  following  opinion : 

There  can  be  no  serious  question  that  the  object  of  this  constitutional 
provision  was  to  make  it  clear  that  provisions  of  a  freeholders'  charter 
should  control  in  the  matter  of  the  dismissal  of  any  officer  or  employee  of 
a  municipality,  and  it  was  very  properly  recognized  in  the  opinion  of  the 
learned  district  court  in  this  proceeding  that  such  provisions  "would  not 
control"  if  such  officer  or  employee  can  be  removed  by  the  superior  court 
under  the  sections  of  the  Penal  Code  heretofore  referred  to,  where  the 
charter  provisions  contemplate  that  the  whole  matter  of  removals  shall 

1  Angellotti,  J.,  in  whose  opinion  two  other  judges  concurred,  added  to  what 
was  said  in  the  opinion  sanctioned  by  the  majority :  "I  deem  it  proper  to  add  that 
I  am  satisfied  that  the  effect  of  the  charter  provision  .  .  .  was  to  create  a  vacancy 
in  the  office.  .  .  .  There  can  be  of  course  no  question  as  to  the  power  of  the  people 
of  the  city  and  county  of  San  Francisco  to  make  such  provision  in  their  charter 
as  to  purely  municipal  offices.  As  is  shown  in  the  opinion  of  the  chief  justice,  the 
provision  for  the  ouster  of  the  incumbent  in  the  contingency  named  is  in  no  degree 
by  way  of  punishment  for  any  offense  alleged  to  have  been  committed  by  him,  but 
is  solely  for  the  purpose  of  securing  an  efficient,  orderly,  and  decent  discharge  of 
the  office,  which  doubtless  it  was  deemed  could  not  be  had  during  the  incumbency 
of  one  under  a  verdict  of  conviction  of  felony." 

»  157  Cal.  481.     1910. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       317 

be  in  the  hands  of  the  appropriate  municipal  authority.  The  question  is 
then  whether  the  charter  provisions  of  the  city  of  Stockton  do  so  contem- 
plate. 

Having  examined  these  charter  provisions  the  court  found  that, 
unlike  the  provisions  of  the  Sacramento  charter  under  review  in  the 
Coffey  case,  they  did  contemplate  exclusiveness  in  respect  to  the 
manner  in  which  removals  might  be  made.1 

Several  conclusions  may  be  drawn  from  the  above  review  of 
cases  upon  this  subject.  In  the  first  place,  prior  to  the  constitu- 
tional amendment  of  1906  the  court  never  had  occasion  to  declare 
whether  the  regulation  of  matters  pertaining  to  the  removal  of 
municipal  officers  was  or  was  not  a  municipal  affair  within  the 
meaning  of  the  amendment  of  1896.  This  resulted  from  the  fact 
that  in  the  cases  that  arose  there  was,  in  the  opinion  of  the  court, 
no  actual  conflict  between  state  law  and  charter  provision.  In  the 
second  place,  it  would  seem  that  by  its  literal  terms  the  amendment 
of  1906  would  render  state  laws  inapplicable  only  when  there  were 
charter  provisions  upon  this  subject.  In  the  absence  of  such 
provisions  the  state  law  would  apply ; 2  but  this  is  a  rule  which, 
as  we  have  seen,  has  in  effect  been  held  to  be  governing  as  to  mu- 
nicipal affairs  even  in  the  absence  of  any  specific  constitutional 
provision.  Moreover,  the  examination  which  the  court  made  in 
the  Craig  case  to  ascertain  whether  the  charter  provisions  contem- 
plated exclusive  control  in  the  matter  should  doubtless  be  taken  to 
mean  that  this  element  of  exclusiveness  must  be  found  to  exist 
before  it  could  be  held  that  the  state  law  did  not  have  even  con- 
current applicableness.  In  other  words,  had  the  Coffey  case  been 
decided  after  the  amendment  of  1906  the  decision  would  have 
been  the  same,  because  in  the  opinion  of  the  court  the  provi- 
sions of  the  charter  in  question  did  not  contemplate  exclusiveness. 
Whether  or  not  this  was  a  justifiable  interpretation  to  put  upon  the 
amendment  is  an  open  question.  The  amendment  declared  that 
the  charter  provisions  with  reference  to  dismissal  "shall  control." 
It  did  not  declare  that  such  provisions  if  exclusive  shall  control ; 

1  See  also  Dinan  v.  Superior  Court,  6  Cal.  App.  217.     1907. 
*  Supra,  316. 


318     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

nor  yet  that  such  provisions,  no  matter  what  their  contemplation, 
shall  control  exclusively.  But  when  it  is  considered  that  the 
amendment  was  in  all  probability  prompted  by  the  decision  of  the 
court  in  the  Coffey  case,  it  is  perhaps  not  unreasonable  to  believe 
that  those  who  drafted  it  intended  to  provide  that  where  a  mu- 
nicipal charter  contained  provisions  regulating  the  matter  of  the 
removal  of  corporate  officers,  removals  might  be  made  only  under 
such  provisions  and  not  at  all  under  state  law,  even  though  the 
latter  could  be  construed  merely  to  run  current  with  the  charter 
requirements. 

In  the  third  place,  it  is  important  to  note  that  neither  the 
amendment  of  1906  nor  the  Craig  case  decided  under  it  is  authority 
for  the  view  that  municipal  officers  were  rendered  immune  from 
trial  by  the  courts  of  the  state  for  any  and  all  offenses  for  which 
punishment  was  provided  in  the  Penal  Code.  Certain  sections  of 
that  code  provided  for  the  trial  of  officials  which,  upon  conviction, 
could  result  only  in  an  order  of  removal  from  office  and  not  in  a 
sentence  imposing  fine,  imprisonment,  or  other  punishment.  These 
were  the  sections  which  might  be  superseded  by  the  provisions  of 
freeholders'  charters.  Where  other  punishment  was  provided  the 
general  law  unquestionably  remained  applicable.  Moreover,  it  is 
highly  questionable,  as  will  be  noted  later,1  whether  a  freeholders' 
charter  could  provide  any  punishment  for  official  misconduct  or 
negligence  beyond  removal  from  office. 

Is  the  Manner  in  which  the  "Legislative  Power"  of  a  City  shall  be 
exercised  a  Municipal  Affair  f 

In  the  case  of  In  re  Pfahler,2  already  mentioned  above,  where 
question  was  raised  as  to  the  validity  of  the  initiative  and  referen- 
dum provisions  of  the  freeholders'  charter  of  Los  Angeles,  one  of  the 
contentions  asserted  was  that  these  provisions  were  in  conflict  with 
the  general  laws  of  the  state.  On  this  point  the  court  declared : 

"It  is  earnestly  urged  that  the  initiative  provision  of  the  charter  is 
inconsistent  with  the  form  of  municipal  government  prescribed  by  title 

1  Infra,  365.  2  150  Cal.  71  (1906)  ;  supra,  210. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       319 

III  of  part  IV  of  the  Political  Code  (sec.  4354  et  seq.).  These  sections 
constituted  part  of  the  original  code,  and  provided  a  general  form  of  gov- 
ernment for  cities.  By  section  4355,  the  legislative  power  of  the  city  is 
vested  in  a  common  council.  It  is  said  that  this  is  a  general  law  with 
which  the  provisions  of  freeholders'  charters  must  be  consistent.  As  to 
municipal  affairs,  it  is  sufficient  if  the  provisions  of  a  charter  are  consistent 
with  the  constitution.  As  we  have  shown  the  method  of  exercising  the 
legislative  power  of  a  municipality  is  a  municipal  affair." 

It  seems  unnecessary  to  comment  upon  this  expression  of  opinion, 
for  the  contrary  contention  urged  by  counsel  was  manifestly  absurd. 


The  "Municipal  Affairs"  Amendment  as  reamended  in  1914 

At  the  general  election  held  in  November,  1914  an  amendment 
was  adopted  which  rewrote  section  six  of  article  eleven  as  follows : 

Corporations  for  municipal  purposes  shall  not  be  created  by  special 
laws ;  but  the  legislature  shall,  by  general  laws,  provide  for  the  incorpo- 
ration, organization,  and  classification,  in  proportion  to  population,  of 
cities  and  towns,  which  laws  may  be  altered,  amended,  or  repealed ;  and 
the  legislature  may,  by  general  laws,  provide  for  the  performance  by 
county  officers  of  certain  of  the  municipal  functions  of  cities  and  towns  so 
incorporated,  whenever  a  majority  of  the  electors  of  any  such  city  or  town 
voting  at  a  general  or  special  election  shall  so  determine.  Cities  and 
towns  heretofore  organized  or  incorporated  may  become  organized  under 
the  general  laws  passed  for  that  purpose,  whenever  a  majority  of  the  elec- 
tors voting  at  a  general  election  shall  so  determine,  and  shall  organize  in 
conformity  therewith.  Cities  and  towns  hereafter  organized  under  char- 
ters framed  and  adopted  by  authority  of  this  constitution  are  hereby 
empowered,  and  cities  and  towns  heretofore  organized  by  authority  of 
this  constitution  may  amend  their  charters  in  the  manner  authorized  by 
this  constitution  so  as  to  become  likewise  empowered  hereunder,  to  make 
and  enforce  all  laws  and  regulations  in  respect  to  municipal  affairs,  subject 
only  to  the  restrictions  and  limitations  provided  in  their  several  charters, 
and  in  respect  to  other  matters  they  shall  be  subject  to  and  controlled  by 
general  laws.  Cities  and  towns  heretofore  or  hereafter  organized  by 
authority  of  this  constitution  may,  by  charter  provision  or  amendment, 
provide  for  the  performance  by  county  officers  of  certain  of  their  municipal 
functions,  whenever  the  discharge  of  such  municipal  functions  by  county 
officers  is  authorized  by  general  laws  or  by  the  provisions  of  a  county 
charter  framed  and  adopted  by  authority  of  this  constitution. 


320     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Apart  from  the  clauses  of  this  amendment  which  deal  with  the 
subject  of  city-county  relations,1  it  is  not  easy  to  comprehend  the 
motives  which  prompted  the  rephrasing  of  this  section.  It  had  in 
effect  been  held,  as  we  have  seen,2  that  as  the  provision  stood,  a 
general  law  even  though  it  related  to  a  municipal  affair  would 
apply  to  a  city  operating  under  a  freeholders'  charter  whenever 
that  charter  was  silent  in  respect  to  the  subject  of  the  law.  This 
rule,  it  is  true,  was  obviously  not  derived  from  a  literal  construc- 
tion of  the  provision  which  declared  that  "  cities,"  as  well  as  "  char- 
ters," should  in  municipal  affairs  be  exempt  from  the  control  of 
general  laws.  It  was  nevertheless  a  rule  and  a  very  useful  rule. 
It  was  what  the  constitution  should  have  declared.  But  be  that  as 
it  may,  the  cities  of  the  state  were  certainly  enjoying  the  benefit 
of  the  rule  in  question,  for  general  laws  were  in  practice  applied  in 
home  rule  cities  in  a  considerable  number  of  instances  in  which 
charters  failed  to  cover  this  or  that  subject. 

Now  note  the  wording  of  the  new  pronouncement:  "Cities 
...  are  hereby  empowered  ...  to  make  and  enforce  all  laws  and 
regulations  in  respect  to  municipal  affairs,  subject  only  to  the 
restrictions  and  limitations  provided  in  their  several  charters,  and 
in  respect  to  other  matters  [only?]  they  shall  be  subject  to  and  con- 
trolled by  general  laws."  Does  this  mean  that  cities  shall  here- 
after not  be  subject  to  general  laws  when  their  charters  are  silent 
or  incomplete  as  to  a  particular  municipal  affair  ?  If  so,  many 
cities  of  the  state  will  be  immediately  compelled  to  supplement 
their  existing  charters  by  amendments.  If  not,  it  is  not  easy  to 
see  how  the  new  phraseology  changes  the  law  at  all;  for  cities 
already  enjoyed,  under  the  authority  to  frame  charters  for  their 
own  government,  the  power  to  "make  and  enforce  all  laws  and 
regulations  in  respect  to  municipal  affairs."  The  specific  refer- 
ence to  the  power  to  "amend  their  charters"  indicates  perhaps 
that  it  was  in  the  minds  of  those  who  drafted  the  provision  that  it 
would  give  rise  to  the  necessity  for  amendments ;  but  whether  or 
not  this  provision  means  that  cities  will  no  longer,  even  if  their 
charters  be  silent  upon  this  or  that  municipal  affair,  be  subject  to 

i  Infra,  386,  393,  394.  »  Supra,  252,  253,  264,  284,  312. 


CONFLICT  WITH  STATE  LAWS  IN  CALIFORNIA       321 

general  laws  upon  the  subject  is  a  question  for  the  courts  to  decide. 
Certainly  no  additional  power  was  by  this  change  conferred  upon 
the  city,  for  under  the  old  wording  any  city  could  occupy  the  en- 
tire field  of  municipal  affairs  to  whatever  extent  it  chose.  By  the 
old  wording  of  the  section  all  " cities "  and  all  "charters"  were 
exempted  from  the  control  of  state  laws  in  municipal  affairs. 
Under  the  new  wording  it  is  not  clear  whether  it  is  "cities"  that 
are  "subject  only  to  the  restrictions"  of  "their  several  charters." 
or  whether  it  is  "laws  and  regulations  in  respect  to  municipal 
affairs"  that  are  "subject  only"  to  such  restrictions.  If  the  latter 
meaning  prevails  then  the  provision  is  much  narrower  as  to  the 
exemption  of  cities  than  formerly,  for  there  are  many  charter  pro- 
visions which  might  not  be  included  in  the  category  of  "laws  and 
regulations."  However,  here  again  is  a  problem  for  the  courts. 

Indeed,  from  whatever  angle  the  amendment  of  1914  be  viewed, 
it  would  seem  that  its  net  result  was  to  supply  new  and  wholly 
unnecessary  agony  for  the  courts  and  possibly  also  to  furnish  a  whip 
to  compel  every  city  of  the  state  to  live  up  to  the  utmost  limit  of 
its  charter-making  powers. 


CHAPTER  X 

HOME    RULE    IN    CALIFORNIA  —  THE    POWERS    OF 

THE  CITY 

REGARDLESS  of  any  question  of  conflict  between  state  laws  and 
the  provisions  of  freeholders'  charters,  what  is  the  limit  to  the 
powers  which  a  city  may  draw  unto  itself  under  the  authority 
granted  to  frame  a  charter  for  its  "own  government"? 

Is  the  Exercise  of  the  Police  Power  included  in  the  Grant  of  Power 
to  frame  a  Charter  ? 

Reference  has  been  made  in  a  preceding  chapter  1  to  the  fact 
that  it  has  been  intimated  by  the  California  courts  that  the  rela- 
tion between  state  laws  enacted  under  the  police  power  and  the 
police  ordinances  of  home  rule  cities  is  precisely  the  same  as  the 
usual  relation  existing  between  state  laws  of  this  character  and 
municipal  ordinances  passed  by  a  city  operating  under  a  legislative 
charter.  If  there  is  absolute  conflict  between  the  two  the  state 
law  controls ;  but  there  is  nothing  to  prevent  the  usual  concurrent 
regulation  of  the  same  subjects  by  statutes  and  ordinances. 

It  would  have  been  too  absurd  for  imagining  had  the  California 
courts  declared  that  the  power  to  frame  a  charter  for  the  city's  own 
government  did  not  include  the  power  to  enact  police  ordinances. 
A  city  not  endowed  with  such  power  would  surely  be  a  strange 
anomaly.  Nobody  has  ever  thought  to  make  such  a  contention 
before  the  courts  either  in  California  or  in  any  other  state  that  has 
conferred  home  rule  powers  upon  cities.  Whether  or  not  the 
framers  of  the  constitution  of  1879  thought  that  some  question 

1  Supra,  256,  292. 
322 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    323 

might  be  raised  in  regard  to  this  matter  does  not  appear;  but 
assuredly  all  uncertainty  was  dissolved  by  the  incorporation  of  a 
provision  which  declared  as  follows  : l 

Any  county,  city,  town,  or  township  may  make  and  enforce  within  its 
limits  all  such  local,  police,  sanitary,  and  other  regulations  as  are  not  in 
conflict  with  general  laws. 

What  did  this  declaration  as  written  into  the  fundamental  law 
mean?  It  did  not  refer  specifically  to  cities  under  freeholders' 
charters,  San  Francisco  being  the  only  city  within  the  immediate 
contemplation  of  those  who  in  drafting  the  constitution  originally 
restricted  the  exercise  of  home  rule  powers  to  cities  of  more  than 
100,000  inhabitants.  All  other  cities,  and  San  Francisco  as  well, 
if  it  failed  to  adopt  a  charter  of  its  own,  were  under  charters  which, 
while  granting  police  powers,  made  a  specific  enumeration  of  such 
powers.  Did  the  provision  mean  that  these  cities  were  at  one 
stroke  of  the  constitutional  pen  emancipated  from  this  enumera- 
tion of  powers,  that  they  might  thereafter,  regardless  of  charter 
specifications,  exercise  any  power  that  might  be  gathered  under 
the  expansive  wings  of  the  term  "  police  "?  And  did  it  mean  that 
any  city  framing  its  own  charter  was  absolved  from  the  necessity 
—  indeed  was  pointed  to  the  folly  —  of  enumerating  the  police 
powers  which  its  legislative  body  might  exercise  ?  In  other  words, 
could  the  legislative  body  of  any  city,  home  rule  or  otherwise,  look 
to  this  broad  grant  of  authority  to  enact  police  ordinances  and 
ignore  the  restrictive  enumeration  of  the  local  charter  ?  It  is 
interesting  to  review  the  decisions  of  the  California  court  upon  this 
subject. 

In  the  early  case  of  Ex  parte  Casinello 2  the  court  held  it  to  be 
very  clear  that  authority  to  pass  an  ordinance  prohibiting  the  de- 
posit of  rubbish  in  the  streets  was  vested  in  the  board  of  super- 
visors of  San  Francisco  by  its  charter;  "but  if  there  were  any 
room  for  doubt,  the  clause  in  the  constitution  (section  11  of 
article  XI)  is  too  plain  to  admit  of  more  than  one  construction." 
By  this  clause  "we  have  authority  clearly  and  expressly  conferred 

1  Art.  XI,  sec.  11.  2  62  Cal.  538.     1881. 


324     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

by  the  organic  law  of  the  state,  and  that  it  is  wisely  conferred 
will  admit  of  no  doubt."  Here  then  was  a  clear  intimation  that  if 
the  charter  were  found  lacking,  the  general  grant  of  the  constitu- 
tion supplied  all  deficiencies. 

Again  in  the  early  case  of  In  re  Stuart1  it  was  held  not  only 
that  power  to  enact  a  liquor  license  ordinance  was  conferred  by  the 
charter  of  San  Francisco  but  also  that  "ample  authority  to 
enact  this  order  is  found  in  the  eleventh  section  of  Article  XI  of 
the  constitution."  Did  this  imply  that  the  constitution  con- 
ferred "ample  authority"  directly,  even  if  the  charter  did  not; 
or  was  the  court  here  merely  accumulating  authorities  ? 

Following  the  decision  of  these  cases  the  supreme  court  of 
California  sustained  numerous  police  ordinances  of  cities  either  by 
joint  reference  to  the  charter  and  to  the  constitutional  provision 
under  review  or  by  sole  reference  to  the  constitutional  grant  of 
power.2  As  an  instance  of  a  case  in  which  decision  was  reached  by 
reference  only  to  the  constitutional  provision,  it  being  claimed  the 
city  had  no  power  to  enact  the  ordinance  in  question  under  the 
terms  of  its  charter,  the  following  expression  of  opinion  as  delivered 
in  the  case  of  Ex  parte  Campbell 3  may  be  noted  : 

Prior  to  the  adoption  of  the  constitution  of  1879,  the  local  authorities 
possessed  only  such  powers  as  were  expressly  or  by  necessary  implication 
conferred  upon  them  by  their  charters.  It  is  now  provided  that  "any 
county,  city,  town,  or  township  may  make  and  enforce  within  its  limits 
all  such  local,  police,  sanitary,  and  other  regulations  as  are  not  in  conflict 
with  general  laws."  (Const.,  Art.  XI,  sec.  11.)  Under  this  provision, 
every  county,  city,  town,  or  township  may  adopt  and  enforce  such  con- 
stitutional police  regulations  as  are  not  in  conflict  with  general  laws.  It 

1  61  Cal.  374.     1882. 

*  Ex  parte  Moynier,  65  Cal.  33  (1884) ;  Ex  parte  Wolters,  65  Cal.  269  (1884) ; 
Ex  parte  Mount,  66  Cal.  448  (1885) ;  Ex  parte  White,  67  Cal.  102  (1885) ;  In  the 
Matter  of  Yick  Wo,  68  Cal.  294  (1885) ;  In  re  Guerrero,  69  Cal.  88  (1886)  ;  In  re 
Hang  Kie,  69  Cal.  149  (1886) ;  Ex  parte  McNally,  73  Cal.  632  (1887) ;  Ex  parte 
Campbell,  74  Cal.  20  (1887) ;  Ex  parte  Cheney,  90  Cal.  617  (1891)  ;  Ex  parte 
Tuttle,  91  Cal.  589  (1891) ;  Ex  parte  Sing  Lee,  96  Cal.  354  (1892)  ;  Ex  parte  Hayes, 
98  Cal.  555  (1893) ;  Ex  parte  Lacey,  108  Cal.  326  (1895) ;  Ex  parte  McClain,  134 
Cal.  110  (1901) ;  Dobbins  v.  City  of  Los  Angeles,  139  Cal.  179  (1903) ;  In  re  Smith, 
143  Cal.  368  (1904) ;  In  re  Zhizhuzza,  147  Cal.  328  (1905). 

3  74  Cal.  20.     1887. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    325 

has  the  same  power  over  its  own  local  police  and  sanitary  affairs  as  were 
formerly  granted  by  the  legislature,  and  unless  the  exercise  thereof  will 
conflict  with  the  operation  of  general  laws,  it  may  make  and  enforce  the 
same  through  its  local  government. 

It  is  true,that  in  the  case  of  Ex  parte  Lorenzen,1  decided  in  1900, 
the  court,  as  apparent  justification  for  applying  the  well-known 
rule  of  reasonableness  to  the  case  of  a  municipal  police  ordinance 
that  was  ultimately  sustained,  made  the  broad  declaration  that  the 
section  of  the  constitution  in  question  was  "not  to  be  construed 
as  enlarging  the  powers  which  municipalities  theretofore  enjoyed." 
It  was  "merely  an  express  grant  of  a  power  which  formerly  they 
possessed  by  implication. "  In  the  face  of  the  considerable  number 
of  cases  in  which  the  courts  sustained  police  ordinances  by  direct 
reference  to  the  constitution  where  the  charter  lacked  in  compre- 
hensiveness of  grant,  this  assertion  was  wholly  out  of  harmony 
with  the  general  doctrine  elsewhere  applied,  unless,  indeed,  it  may 
be  said  that  California  courts  had  "theretofore"  been  far  more 
liberal  in  construing  the  implied  powers  of  cities  than  have  the 
courts  of  other  states.  This  does  not  appear  to  have  been  a  fact ; 
and  the  declaration  of  the  Lorenzen  case,  which  in  effect  held  that 
the  constitutional  provision  upon  this  subject  was  entirely  useless, 
must  be  regarded  as  a  slip  of  utterance.  At  any  rate,  it  seems  never 
to  have  been  reiterated. 

Emboldened  by  the  fact  that  the  courts  had  in  the  main  ex- 
pressed very  liberal  views  concerning  the  scope  of  the  powers  con- 
ferred by  section  eleven,  San  Francisco,  having  been  frustrated  at 
the  polls  in  its  several  attempts  to  secure  an  entirely  new  charter, 
determined  in  1889  to  try  out  the  possibilities  of  this  section. 
If  the  provision  in  question  authorized  cities  to  exercise  police 
powers  not  expressly  or  impliedly  conferred  by  their  charters,  why 
could  they  not  also  exercise  police  powers  in  violation  of  such 
charters?  If,  in  other  words,  the  time-honored  canons  of  charter 
construction,  as  laid  down  in  the  oft-quoted  words  of  Judge  Dillon, 
were  by  this  provision  abrogated  so  far  as  police  powers  were  con- 
cerned, why  could  not  the  city  go  one  step  further  and  rely  upon 

i  128  Cal.  431.     1900. 


326     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  direct  constitutional  grant  for  authority  to  ignore  its  charter 
entirely  in  the  exercise  of  "local,  police,  sanitary,  and  other 
regulations"? 

Acting  upon  this  theory  of  its  competence  the  board  of  super- 
visors enacted  an  ordinance  which  reorganized  the  fire  department 
of  the  city  in  a  manner  that  differed  from  that  prescribed  by  the 
charter.  Answering  the  contention  that  this  ordinance  ought  to 
be  sustained  under  the  general  and  direct  grant  of  power  contained 
in  section  eleven,  the  court  declared  in  the  case  of  the  People 
ex  rel.  Wilshire  v.  Newman : 1 

This  delegation  of  power  to  make  police  regulations  is  authority  to 
make  only  such  regulations  as  are  usual  and  necessary  in  the  government 
of  municipalities  under  their  respective  charters.  .  .  .  The  provision 
of  the  constitution  referred  to  was  not  intended  to  clothe  the  board  of 
supervisors  with  the  power  to  annul  a  constitutional  part  of  the  charter 
itself,  or  to  overthrow  one  of  the  municipal  departments.  The  power 
conferred  by  it  is  not  vested  in  any  particular  branch  of  the  municipal 
government,  but  in  the  whole  municipality.  The  government  of  the  city 
and  county  of  San  Francisco  is  distributed  into  different  departments. 
The  board  of  supervisors  represents  one  of  these  departments  and  the 
board  of  fire  commissioners  represents  another  department.  The  board 
of  supervisors  has  no  more  authority  to  reorganize  the  board  of  fire  com- 
missioners than  the  latter  has  to  reorganize  the  board  of  supervisors.  The 
same  power  that  established  one  board  established  the  other,  and  one  is 
just  as  essential  and  important  a  part  of  the  municipal  government  as  the 
other.  The  regulations  provided  for  by  section  11  of  Article  XI  are  such 
as  are  in  accordance  with  the  fundamental  organic  law.  This  must  be 
so;  otherwise  the  board  of  supervisors  could  completely  revolutionize 
the  entire  city  government  under  a  grant  of  power  to  make  "such  local, 
police,  sanitary,  and  other  regulations  as  are  not  in  conflict  with  general 
laws,"  —  in  effect,  make  a  municipal  charter  by  ordinance,  and  change 
the  same  as  often  as  it  desired. 

It  will  be  observed  that  the  court  intimated  at  the  outset  of  the 
remarks  above  quoted  that  it  was  doubtful  whether  the  ordinance 
under  review  was  among  the  "usual  and  necessary"  police  regu- 
lations of  a  municipality.  But  unless  greater  weight  is  to  |?e 
attached  to  this  part  of  the  opinion  than  seems  justified  when  the 

1  96  Cal.  605.     1892. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    327 

opinion  as  a  whole  is  read,  it  is  impossible  to  reconcile  this  case  with 
that  of  Foster  v.  Board  of  Police  Commissioners  1  decided  two 
years  later. 

The  legislature  in  1878  enacted  a  law  governing  the  issuance  of 
liquor  licenses  in  San  Francisco.  This  law  was  patently  a  part  of 
the  charter  of  the  "city  and  county."  In  1893  the  city  passed  an 
ordinance  on  this  subject  which  was  in  clear  conflict  with  the  law 
in  question.  It  was  contended  that  under  the  doctrine  of  the  New- 
man case  the  city  was  powerless  to  enact  a  police  ordinance  that 
violated  a  provision  of  its  charter.  The  court  answered : 

It  may  be  conceded  that  the  constitution  of  1879  did  not  repeal  the 
act  of  1878,  but  the  act  in  question  was  purely  local,  applicable  only  to 
the  city  and  county  of  San  Francisco,  and  was  upon  a  subject  included 
within  section  11  of  Article  XI  of  the  constitution.  .  .  . 

The  power  to  legislate  upon  such  subjects,  thus  given  to  the  city, 
necessarily  includes  the  power  to  amend  an  existing  regulation  upon  the 
same  subject;  and  this  authority  expressly  given  in  the  constitution 
obviates  all  necessity  of  any  authority  being  given  upon  the  same  subject 
in  the  charter. 

It  seems  almost  unnecessary  to  point  out  that  the  argument  here 
advanced  by  the  court  could  have  been  applied  with  equal  force  in 
the  Newman  case.  The  provision  of  the  charter  which  was  vio- 
lated by  the  ordinance  reorganizing  the  fire  department  was  also 
"  purely  local,  applicable  only  to  the  city  and  county  of  San  Fran- 
cisco." And  while  it  may  have  been  true  —  and  certainly  was 
true  under  the  doctrine  of  numerous  adjudications  of  the  court  — 
that  "the  authority  expressly  given  in  the  constitution  obviates 
the  necessity  of  any  authority  being  given  upon  the  same  subject 
in  the  charter,"  this  was  a  point  that  had  no  bearing  upon  the  issue 
at  bar.  Whether  the  necessity  was  obviated  or  not,  the  charter 
did  in  fact  contain  a  provision  regulating  the  issuance  of  liquor 
licenses  just  as  it  contained  a  provision  organizing  the  fire  depart- 
ment. In  the  one  case,  however,  the  ordinance  was  void  because 
it  annulled  "a  constituent  part  of  the  charter  itself,"  while  in  the 
other  case  it  was  valid  even  though  it  did  annul  a  charter  regulation. 

1  102  Cal.  483.     1894. 


328  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  fundamental  principle  there  was  obviously  no  distinction  be- 
tween the  two  cases.  Such  difference  as  existed  was  a  matter 
purely  of  the  degree  to  which  the  charter  provisions  were  sought 
to  be  overridden. 

Moreover,  it  is  worthy  of  note  in  passing  that  the  point  which 
was  emphasized  in  the  Newman  case  to  the  effect  that  section 
eleven  of  the  constitution  did  not  confer  police  powers  upon  the 
municipal  council  or  any  other  " branch"  of  the  government  but 
upon  the  " whole  municipality,"  was  a  point  which,  however  well 
taken  under  the  terms  of  the  provision,  could  have  been  raised  to 
defeat  the  logic  of  the  entire  series  of  decisions  which  sustained  the 
doctrine  that  since  the  constitution  conferred  the  police  power 
directly,  no  specific  charter  grant  was  necessary.  A  city  can  act 
only  through  the  duly  constituted  branches  of  its  government. 
There  is  usually  a  primary  "  legislative "  branch.  In  all  of  the 
decisions  in  which  this  doctrine  was  applied  the  court  clearly 
assumed  that  this  legislative  branch  was  the  city.  Yet  every  one 
knows  that  in  many  cities  even  the  so-ca^ed  legislative  functions 
of  the  corporation  are  divided.  Thus  a  health  board  may  be 
given  exclusive  charter  authority  to  enact  health  ordinances. 
These  are  certainly  police  regulations.  By  what  reasoning,  there- 
fore, did  the  court  justify  its  assumption  that  the  city  council  or 
Other  primary  legislative  body  was  the  "city"  within  the  meaning 
of  the  constitutional  provision  that  conferred  upon  cities  the  power 
to  make  and  enforce  regulations  ?  l 

In  Odd  Fellows  Cemetery  Association  v.  San  Francisco,2  a  case 
already  mentioned  in  another  connection,  the  inconsistency  of  the 
views  which  had  been  expressed  upon  this  subject  were  evidently 
brought  to  the  attention  of  the  court.  For  in  that  case,  in  discus- 
sing the  source  of  the  city's  power  to  enact  a  police  ordinance  pro- 
hibiting any  further  burials  in  the  city,  the  court  said : 

The  ordinance  in  question  was  manifestly  passed  in  the  exercise  of  the 
police  power  given  to  the  city  and  county  by  the  Constitution.  Article 
XI  (sec.  11)  provides  that  "any  county,  city,  town,  or  township  may 

1  For  the  opinion  of  the  Ohio  supreme  court  on  this  point,  see  infra,  Ch.  XVII. 
»  140  Cal.  226  (1903) ;   supra,  292. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    329 

make  and  enforce  within  its  limits  all  such  local,  police,  sanitary,  and 
other  regulations  as  are  not  in  conflict  with  general  laws." 

The  city  charter  provides  (subdivision  1,  sec.  1,  chap.  2,  Art.  II)  that 
"The  board  of  supervisors  shall  have  power:  1.  To  ordain,  make,  and 
enforce  within  the  limits  of  the  city  and  colinty  all  necessary  local,  police, 
sanitary,  and  other  laws  and  regulations."  The  insertion  of  the  word 
v  necessary"  in  the  grant  of  power  contained  in  the  charter  does  not 
limit  or  restrict  the  power  given  to  the  city  by  the  constitution.  The 
city  charter  in  municipal  affairs  is  paramount  to  general  laws,  but  it  can- 
not be  superior  to  the  constitution  itself,  and  nothing  contained  in  such 
charter  can  in  any  way  affect  a  grant  of  power  conferred  by  the  constitu- 
tion. All  the  legislative  power  of  the  city  is  by  the  charter  vested  in  the 
board  of  supervisors.  (Art.  II,  chap.  1,  sec.  1.)  By  virtue  of  this  clause, 
the  constitutional  grant  of  the  police  powers  of  the  state  to  the  city  goes 
directly  to  and  rests  in  the  board,  which  thereby  becomes  possessed  of 
the  right  to  exercise  within  the  city  limits  the  entire  police  power  of  the 
state,  subject  only  to  the  control  of  general  laws. 

Here  then  was  an  apparent  restatement  of  the  doctrine  of  the 
Foster  case  to  the  effect  that  a  charter  provision  on  the  subject 
of  the  police  power  could  not  affect  the  general  grant  of  such 
power  made  by  the  constitution.  But  in  the  same  breath  it  was 
asserted  that  the  reason  why  the  constitutional  grant  to  the  city 
went  directly  to  the  board  of  supervisors  —  a  governmental  branch 
of  the  city  —  was  because  the  charter  conferred  all  the  legislative 
power  of  the  city  upon  the  board.  In  other  words,  it  was  the 
charter  which  must  designate  the  organ  of  government  that  might 
exercise  the  power  given  to  the  city  by  the  constitution;  but 
nothing  contained  in  this  same  charter  could  "in  any  way  affect" 
the  grant  of  power.  If  this  be  logic  it  is  assuredly  refined  to  the 
last  degree. 

This  Odd  Fellows  Cemetery  case  was  discussed  arguendo  in  the 
case  of  In  re  Pf abler,1  where  one  of  the  contentions  made  against 
the  validity  of  the  initiative  and  referendum  provision  of  the  Los 
Angeles  charter  was  that  the  court  had  declared  that  the  direct 
grant  of  police  powers  by  the  constitution  could  not  be  affected 
by  a  charter  provision.  The  court  attempted,  with  small  success, 
to  clear  up  the  nebulous  reasoning  of  the  Odd  Fellows  Cemetery 

1  150  Cal.  71  (1906) ;  supra,  210,  318. 


330     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

case.  But  it  was  declared  —  and  this  was  obviously  true  and  was 
all  that  was  necessary  to  the  decision  of  this  point  in  the  Pfahler 
case  —  that  that  case  was  direct  "  authority  upon  the  proposition 
that  the  legislative  power  of  a  city  operating  under  a  freeholders' 
charter  is  just  where  it  is  placed  by  the  charter. " 

In  John  Rapp  &  Son  v.  Kiel l  it  was  held  that  an  ordinance  of 
San  Francisco  imposing  a  license  tax  "for  the  purpose  of  regulation" 
on  persons  selling  liquors  "in  quantities  of  more  than  one  quart" 
was  void  as  being  hi  conflict  with  a  charter  provision  conferring 
power  to  levy  such  taxes  only  on  persons  selling  "in  less  quantity 
than  one  quart."  The  opinion  rendered  in  this  case  was  devoted 
chiefly  to  showing  that  in  the  California  decisions  no  difference  had 
been  made  between  a  "license  tax"  for  revenue  and  a  "license  fee 
or  charge  "  for  regulation.  But  upon  the  point  that  the  charter 
provision  could  not  affect  the  power  of  the  legislative  body  of  the 
city  to  exercise  the  direct  constitutional  grant  of  the  police  power, 
the  court  said : 

It  cannot  now  be  doubted  that  the  legislative  body  of  a  city  having  a 
freeholders'  charter  may  be  limited  by  charter  provision  in  the  exercise 
of  the  police  power  conferred  upon  the  city  by  the  constitution  of  the 
state.  In  this  connection,  it  is  only  necessary  to  refer  to  the  opinion  in 
the  case  of  In  re  Pfahler,  150  Cal.  71,  81,  which  we  think  answers  every 
point  made  in  this  behalf  by  learned  counsel  for  appellants.  (See  also 
People  ex  rel.  Wilshire  v.  Newman,  96  Cal.  605.) 

No  mention  was  made  of  the  wholly  contrary  decision  of  the 
Foster  case,  which  concerned  an  ordinance  and  charter  provision 
of  almost  identically  the  same  character,  nor  of  the  apparent 
restatement  of  the  doctrine  of  that  case  in  the  Odd  Fellows  Cem- 
etery case. 

In  the  same  year  in  which  the  liberal  opinion  of  the  Foster  case 
was  handed  down  an  extremely  narrow  decision  was  rendered  in 
the  case  of  Von  Schmidt  v.  Widber,2  where  it  was  held  that  San 
Francisco  had  no  charter  authority  to  purchase  property  for  a  small- 
pox hospital  and  that  such  authority  was  not  conferred  by  section 
eleven.  "The  'regulations'  which  the  board  of  supervisors"  were 

*  159  Cal.  702.     1911.  *  105  Cal.  151.     1894. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    331 

"thus  authorized  to  make"  were  " rules  of  conduct  to  be  observed 
by  citizens"  and  could  not  "by  any  construction  of  language  be 
held  to  include  the  purchase  of  real  estate."  Nor  could  "the 
power  to  make  such  purchase  be  implied  from  the  authority  to 
make  regulations." 

In  view  of  the  long-established  fact  that  the  only  satisfactory 
method  of  "regulating"  the  "conduct  of  citizens"  suffering  from 
highly  contagious  diseases  is  the  method  of  complete  segregation 
from  other  municipal  inhabitants  under  rigid  quarantine,  and  in  view 
of  the  further  fact  that  such  segregation  imports  the  absolute  neces- 
sity of  having  a  hospital  for  its  accomplishment,  it  would  seem  that 
the  view  taken  by  the  court  was  open  to  the  accusation  of  being  a 
superficial  quibble.  Presumably  an  ordinance  imposing  quaran- 
tine regulations  upon  the  patient  in  his  place  of  abode  would  have 
been  sustained  in  the  absence  of  charter  competence  under  the 
direct  constitutional  grant ;  but  an  ordinance  on  the  same  subject 
which  adopted  a  different  means  of  quarantine  was  void  because 
it  involved  the  necessity  of  a  purchase  of  property. 

The  narrowness  of  view  assumed  in  the  Von  Schmidt  case  may 
also  be  contrasted  with  the  opinion  expressed  hi  the  case  of  Scott 
v.  Boyle,  where  it  was  held  that  an  ordinance  providing  for  the 
appointment  of  sealers  of  weights  and  measures  was  "clearly  valid 
as  an  exercise  of  that  police  power  conferred  on  municipalities  and 
counties  by  section  eleven." 1  Why,  however,  by  a  parity  of  reason- 
ing, might  it  not  have  been  declared  that  the  power  to  make  and 

1  164  Cal.  321  (1912).  Art.  XI,  sec.  14  of  the  constitution  prohibited  the  legisla- 
ture from  creating  offices  in  any  city  "for  the  inspection,  measurement,  or  gradua- 
tion of  any  merchandize,"  etc.,  but  conferred  power  on  cities  to  appoint  such  officers 
"when  authorized  by  general  law."  A  statute  of  1911  authorized  all  counties  and 
cities  to  appoint  sealers  of  weights  and  measures.  The  court  held  that  this  act 
could  be  sustained  under  section  fourteen,  but  if  not,  then  the  ordinance  for  ap- 
pointment could  be  upheld  under  section  eleven. 

By  an  amendment  to  section  fourteen  adopted  in  1911,  the  prohibition  upon  the 
legislature  against  the  establishment  of  a  state  system  of  inspection  was  removed. 
It  was  contended,  but  denied  by  the  court,  that  this  amendment  repealed  the 
statute  of  191 1.  "There  is  no  statute  providing  such  state  system  and  we  are  there- 
fore not  called  upon  to  determine  what  effect  such  statute  might  have  upon  a  pre- 
viously established  local  system." 


332     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

enforce  " regulations"  could  not  "by  any  construction  of  language 
be  held  to  include"  the  creation  of  offices? 

Finally,  as  a  late  instance  showing  that  the  California  court  has 
not  departed  from  its  original  view  that  this  clause  of  the  consti- 
tution conferred  powers  in  addition  to  the  powers  conferred  by  either 
a  legislative  or  a  freeholders'  charter,  may  be  cited  the  case  of  In  re 
Montgomery.1  This  case  sustained  a  "zoning"  ordinance  of 
Los  Angeles,  which  declared  the  entire  city  with  the  exception  of 
seven  designated  "industrial  districts"  to  be  a  "residential  dis- 
trict" and  prohibited  the  carrying  on  of  certain  kinds  of  business 
in  this  residential  district,  including  among  others  the  business  of 
conducting  a  lumber  yard.  The  charter  of  the  city  authorized 
such  an  ordinance,  but  in  its  enumeration  of  the  kinds  of  business 
that  might  be  excluded  lumber  yards  were  not  named.  The 
court  held  that  the  power  to  exclude  lumber  yards  by  the  ordinance 
was  referable  to  the  constitution  and  not  to  the  charter.  It  need 
not  fall  "merely  because  the  city  has  specific  authority  under  its 
charter  to  suppress  certain  kinds  of  business." 

In  spite  of  the  elements  of  inconsistency  that  pervade  some  of 
the  California  cases  upon  this  subject,  it  may  doubtless  be  con- 
cluded that  the  following  points  are  at  least  fairly  established : 

(1)  That  the  direct  grant  of  police  powers  to  cities  by  section 
eleven  of  article  eleven  of  the  constitution  operates  to  confer  powers 
in  addition  to  those  enumerated   in  legislative  or  freeholders' 
charters.     The  corollary  of  this  is  that  a  charter  enumeration  of 
police  powers  is  wholly  superfluous  —  a   corollary  to  which  the 
home  rule  cities  of  the  state  have  in  practice  given  little  heed.2 

(2)  That  it  is  the  local  charter  which  must  determine  the  specific 
organ  or  organs  of  government  that  may  exercise  these  additional 
powers  since  the  constitution  confers  them  upon  the  "city"    as 
such.     (This  point  has  been  ignored  in  most  of  the  cases.) 

(3)  That  the  city  may  not,  in  exercising  powers  referable  to  this 
constitutional  grant,  violate  any  provision  of  its  charter.     (One  or 
two  cases  which  have  never  been  expressly  overruled,  support  the 

1  163  Cal.  457  (1912).  The  same  ordinance  was  upheld  against  different 
contentions  in  Ex  parte  Quong  Wo,  161  Cal.  220  (1911).  2  Supra,  177. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    333 

contrary  rule.  Whether  a  city  may  by  its  charter  wholly  prohibit 
the  exercise  of  the  police  power  in  this  or  that  direction  has  not  been 
determined.) 

(4)  That  this  power  may  extend  only  to  the  making  of  "  regula- 
tions" ;  but  what  constitutes  a  regulation  appears  to  vary  with  the 
temper  and  " point  of  view"  of  the  court. 

Has  a  City  the  Power  to  provide  for  the  Separation  or  Annexation 

of  Territory? 

It  will  be  recalled  that  in  People  ex  rel.  Connolly  v.  City  of  Cor- 
onado1  it  was  held,  under  the  general  doctrine  which  was  applied 
before  1896  in  determining  the  supremacy  of  state  laws  over  charter 
provisions,  that  a  portion  of  the  territory  of  San  Diego  was  validly 
separated  from  the  city  under  a  general  statute  even  though  this 
action  did  operate  to  amend  the  freeholders'  charter.  It  was  un- 
necessary to  decide  at  that  time  whether  matters  pertaining  to  the 
separation  of  territory  were  or  were  not  municipal  affairs. 

People  ex  rel.  Adams  v.  City  of  Oakland,2  decided  two  years 
before  the  Coronado  case,  involved,  in  the  view  of  the  court  at 
least,  no  question  of  conflict  between  state  law  and  charter  pro- 
vision. In  October,  1888  an.  election  was  held  under  the  allowance 
of  state  law  which  ratified  the  annexation  of  certain  territory  to 
Oakland.  A  month  later  the  voters  of  the  city  accepted  a  charter 
which  had  been  drafted  the  previous  spring.  In  its  description  of 
the  boundaries  of  the  city  this  charter  naturally  did  not  include 
the  territory  that  was  annexed  subsequent  to  its  drafting.  The 
charter  did  not  become  a  valid  legal  instrument  until  it  was  ratified 
by  the  legislature  in  February,  1889.  The  question  was  whether 
the  charter,  drafted  before  but  legalized  after  the  annexation, 
operated  to  separate  the  territory  which  was  certainly  validly  in- 
cluded within  the  city  from  October,  1888  (the  date  of  the  annexa- 
tion election),  to  February,  1889  (the  date  of  the  legislative  approval 
of  the  charter) .  The  court  held  that  the  description  of  the  boun- 
daries of  a  city  is  an  essential  part  of  its  charter;  that  in  this 

1  100  Cal.  571  (1893)  ;   supra,  247.  8  92  Cal.  611.     1891. 


334  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

instance  the  charter  description  did  not  include  the  territory  an- 
nexed in  October ;  and  that  in  consequence  this  territory  must  be 
regarded  as  having  been  separated  by  the  enactment  of  the  charter. 

This  conclusion  is  manifestly  open  to  some  criticism.  Under  the 
doctrine  of  the  Coronado  case,  decided  later,  territory  could  be 
validly  separated  under  a  general  law  even  though  the  effect  of  such 
action  was  to  amend  the  charter.  Under  the  doctrine  of  the  Oak- 
land case  the  charter  could  separate  territory  from  the  city  even 
though  the  effect  of  such  action  was  to  nullify  an  action  taken  under 
the  general  law.  Here  was  no  understandable  logic.  Charters 
were  subject  to  and  controlled  by  all  laws  of  general  application, 
regardless  at  this  tune  of  whether  they  related  to  matters  of  state 
or  of  municipal  concern.  Such  a  law  was  the  statute  regulating 
the  separation  and  annexation  of  territory.  How  then  could  it  be 
held  that  a  freeholders'  charter  was  subject  to  and  controlled  by  a 
subsequent  but  not  a  previous  action  taken  under  such  law  ?  l 

No  case  involving  the  separation  of  territory  appears  to  have 
been  adjudicated  since  the  adoption  of  the  municipal  affairs  amend- 
ment, the  reason  being  doubtless  that  the  separation  of  territory 
from  a  city  is  not  a  very  common  occurrence.2  Neither  of  the 
above  mentioned  cases  called  for  any  discussion  of  whether  an 
affair  like  this  was  of  state  or  of  local  concern.  As  the  rule  still 
stands  it  must  be  said  to  hold  that  under  the  authority  to  frame 
a  charter  for  its  own  government  a  city  has  the  power  to  lop  off 
territory  from  its  existing  jurisdiction.  The  improbability  that 
such  action  would  be  a  matter  of  common  happening  renders  the 
inquiry  as  to  what  would  in  certain  possible  circumstances  be  the 
legal  status  of  the  territory  thus  thrown  out  of  the  city's  doors  a 
matter  more  of  speculative  interest  than  of  practical  importance. 

It  has  already  been  noted  3  that  in  the  cases  involving  conflicts 
between  state  laws  and  charter  provisions  on  the  subject  of  the 
annexation  of  territory,  the  California  court  more  than  once 

1  It  may  be  noted  that  there  was  here  no  question  of  the  charter's  repealing  the 
law,  but  merely  of  its  nullification  of  an  action  taken  under  the  law. 

1  Even  the  question  of  separation  in  the  Oakland  case,  as  is  obvious,  arose 
through  no  intention.  3  Supra,  269  ff . 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    335 

expressed  the  opinion  that  even  in  the  absence  of  a  controlling  state 
law  a  freeholders'  charter  could  not  regulate  this  matter.  Such 
expressions  must  doubtless  be  regarded  as  dicta  in  those  cases, 
since  a  state  law  did  in  fact  exist.  In  the  case  of  the  People  ex 
rel.  Scholler  v.  City  of  Long  Beach1  this  point  was,  however, 
definitely  decided  without  much  if  any  reference  to  the  general 
law.  The  city  had  attempted  to  annex  certain  territory,  pro- 
ceeding under  the  general  law ;  but  it  was  held  that  the  election 
which  was  had  upon  the  question  of  annexation  was  void  because 
of  illegal  voting.  Before  this  judgment  had  been  rendered  by 
the  lower  court  the  city  framed  a  home  rule  charter  and  included 
in  the  description  of  its  boundaries  the  territory  which  was  thought 
to  have  been  annexed.  It  was  contended  that  the  charter  accom- 
plished the  annexation.  The  court  held  that  the  constitution 
gave  the  city  power  to  frame  a  charter  for  its  own  government 
and  not  for  the  government  of  people  outside  the  city.  The  sub- 
ject of  annexation  could  not  be  controlled  at  all  by  the  charter. 
This  was  an  unmistakable  application  of  the  rule  to  the  effect 
that  over  this  particular  " state"  affair  freeholders'  charters 
could  exert  no  control  whatever  —  not  even  if  the  state  laws  were 
silent  ha  respect  to  the  matter. 

Has  a  City  the  Power  to  acquire   Property  for  and   to  operate  a 
Waterworks  outside  the  City? 

Somewhat  related  to  the  question  of  the  authority  of  a  city  to 
exercise  exterritorial  jurisdiction  in  the  annexation  of  territory 
is  the  question  of  the  city's  competence  to  acquire  property  for 
and  to  operate  a  public  utility  beyond  its  limits.  This  question 
has  been  raised  in  at  least  one  case  in  California  —  the  case  of 
Fellows  v.  City  of  Los  Angeles.2  The  issue  actually  involved 
in  this  case  was  whether  the  city,  having  purchased  from  a  private 
company  an  existing  waterworks  situated  beyond  the  boundaries 
of  the  city,  could  discontinue  the  operation  of  the  plant  and  the 
furnishing  of  water  to  persons  who  were  non-residents  of  the  city 

1  155  Cal.  604.     1909.  » 151  Cal.  52.     1907. 


336     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

but  who  had  been  accustomed  to  being  supplied  with  water  by 
the  company.  The  charter  of  the  city  expressly  conferred  "power 
to  acquire  water  and  water  rights  within  or  without  the  city  for 
the  use  of  its  inhabitants."  Speaking  to  this  provision  of  the 
charter,  the  court  declared  that  "the  acquirement  of  this  water 
plant  and  the  operation  of  the  system,  if  necessary,  were  not 
beyond  the  power  of  the  city,  and  for  the  purposes  of  this  decision, 
we  must  presume  that  the  necessity  existed."  It  was  held,  never- 
theless, that  the  city  could  not  discontinue  the  operation  of  the 
plant  and  thus  discommode  non-residents  who  had  been  receiving 
service  therefrom.  Apparently  it  did  not  occur  to  the  court  that 
this  was  recognizing  the  right  of  the  city  to  frame  a  charter  for 
its  own  government  which  would  have  exterritorial  operation. 
The  power  of  the  city  in  this  regard  was  not  even  discussed. 

In  this  case  no  question  of  the  exercise  of  the  power  of  eminent 
domain  was  raised,  for  the  city  had  acquired  the  plant  in  question 
by  purchase.  There  is  no  reason  to  presume,  however,  that  the 
court  would  have  held  the  city  incompetent  to  exercise  such  power 
where  it  was  essential  to  such  an  undertaking  as  the  construction 
of  a  waterworks.  Indeed  it  is  perfectly  clear  that  this  power  may 
be  completely  dissociated  from  the  exercise  of  general  govern- 
mental powers,  since  it  is  a  power  that  is  frequently  conferred  upon 
private  persons  and  corporations.  There  appears  to  be  no  inher- 
ent reason  why  the  city  might  not  exercise  this  specific  authority 
beyond  its  territorial  jurisdiction  somewhat  in  the  same  capacity 
as  a  private  person.  In  plain  point  of  fact  the  cities  of  California 
under  freeholders'  charters  have  in  more  than  one  instance  exer- 
cised this  power  beyond  their  territorial  limits,  although  apparent 
sanction  for  such  action  is  found  in  the  general  laws  of  the  state.1 

By  an  amendment  of  1911,  as  we  shall  see,2  express  power  was 
conferred  upon  the  cities  of  California  to  furnish  public  utility 
services  to  persons  outside  the  municipal  boundaries.  But  in 
the  light  of  the  decision  of  the  Fellows  case  it  is  impossible  to 
understand  why  such  a  specific  grant  of  power  was  necessary. 

1  City  of  Santa  Cruz  v.  Enright,  95  Cal.  105  (1892).  For  views  of  the  Washing- 
ton court,  see  infra,  429  ff.  2  /n/ra>  300. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    337 

Has  the  City  the  Power  to  exercise  Complete   Control  over  Street 
Improvements  and  Other  Public  Works  ? 

It  will  be  recalled  that  the  supreme  court  of  California  has 
unequivocally  declared  that  the  regulation  of  matters  pertaining 
to  street  improvements  is  a  municipal  affair  and  as  such  is  not 
subject  to  the  control  of  general  laws.1  Whether  a  city  may  under 
the  authority  to  frame  a  charter  for  its  own  government  include 
provisions  relating  to  street  improvements  has  never  been  seri- 
ously questioned;  but  there  are  a  few  cases  in  the  books  which 
touch  upon  certain  phases  of  the  city's  powers  in  this  regard. 

Thus  in  the  case  of  Gassner  v.  McCarthy 2  it  was  held,  by  a  some- 
what strict  construction  of  the  charter  of  San  Francisco,  that 
although  the  city  was  empowered  "to  construct  or  permit  the 
construction  of  tunnels  under  such  rules  and  regulations  as  the 
board  may  prescribe,"  yet  the  city  was  not  empowered  by  its 
charter  to  create  a  special  assessment  district  for  such  purpose  and 
to  impose  the  burden  of  expense  upon  adjacent  property  owners. 
In  this  decision  there  was  no  intimation  whatever  that  the  city, 
through  the  medium  of  its  charter,  could  not  exercise  complete 
control  in  regard  to  such  a  matter  as  this.  The  decision  of  the 
case  turned  merely  upon  the  fact  that  the  charter  had  not  conferred 
upon  the  board  of  supervisors  power  to  construct  tunnels  in  the 
particular  manner  that  had  been  attempted. 

Following  the  decision  of  this  case  the  charter  of  San  Francisco 
was  amended  in  1911  so  as  to  confer  the  power  which  the  court 
had  held  to  be  lacking.  Among  other  provisions  in  respect  to  this 
matter  the  legislative  body  of  the  city  was  empowered  to  enact 
an  ordinance  providing  the  procedure  that  should  be  followed  in 
assessing  the  cost  of  a  tunnel  improvement  upon  property  owners. 
It  was  contended  in  the  case  of  Mardis  v.  McCarthy3  that  this 
provision  constituted  "an  unauthorized  delegation  of  legislative 
power  by  the  legislature  of  the  state,"  the  theory  apparently 
being  that  the  city  in  framing  a  charter  took  the  place  of  the  legis- 
lature of  the  state,  and  that  if  the  legislature  could  not  delegate 

1  Supra,  275.     *  160  Cal.  82.  1911.      3  162  Cal.  94.  1912. 


338     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  authority  to  provide  a  method  of  procedure  by  which  assessments 
should  be  made,  neither  could  the  city  exercise  such  power  of  dele- 
gation. On  this  somewhat  hair-splitting  point  the  court  declared : 

That  the  procedure  for  constructing  tunnels,  or  making  other  street 
improvements,  is  so  far  a  matter  of  local  concern  as  to  be  properly  in- 
cluded within  the  scope  of  a  municipal  charter  is  not  questioned  by  the 
appellant.  (See  Byrne  v.  Drain,  127  Cal.  663.)  And  if  the  charter  may 
define  such  procedure  directly,  we  see  no  reason  why  it  may  not  confer 
upon  the  legislative  body  of  the  municipality  (in  this  instance,  the  board 
of  supervisors)  power  to  enact  a  mode  of  procedure  by  ordinance.  The 
provisions  of  the  ordinance  adopted  pursuant  to  the  authorization  of  the 
charter  have  the  same  sanction  and  the  same  effect  that  they  would  have 
had  if  incorporated  in  the  charter  itself. 

Two  cases  have  come  before  the  California  courts  involving, 
collaterally  at  least,  the  question  as  to  whether  the  determina- 
tion of  the  manner  in  which  public  works  shall  be  constructed  — 
whether,  for  example,  by  contract  or  by  the  direct  employment 
of  labor  —  is  or  is  not  a  matter  that  may  be  controlled  by  the 
provisions  of  the  freeholders'  charter.  In  the  case  of  Perry  v. 
Los  Angeles1  bonds  for  certain  public  works  had  been  issued  under 
the  terms  of  an  act  of  the  legislature,  the  charter  of  the  city  having 
adopted  the  general  laws  of  the  state  governing  such  bond  issues. 
This  act,  however,  specifically  provided  "that  nothing  herein 
contained  shall  be  construed  as  prohibiting  the  municipality 
itself  from  constructing  or  completing  such  works  or  improve- 
ment, and  employing  the  labor  necessary  therefor."  The 
charter  of  Los  Angeles  contained  nothing  that  expressly  au- 
thorized the  construction  of  public  works  by  the  employment 
of  laborers  under  direct  city  management.  Also  it  contained 
nothing  to  prohibit  construction  in  this  manner.  It  was  contended 
under  these  circumstances  that  the  city  lacked  authority  to  under- 
take construction  by  the  direct  method. 

There  was  manifestly  in  this  case  no  question  of  conflict  be- 
tween state  law  and  charter  provision  and  there  was  no  question 
as  to  whether  this  was  or  was  not  a  municipal  affair.  The  issue 

1  157  Cal.  146.     1909. 


E  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    339 

merely  a  question  of  the  power  of  the  city,  and  the  court  held, 
as  might  have  been  expected,  that  since  the  city  was,  under  the 
general  law  which  its  charter  voluntarily  adopted,  not  prohibited 
from  "  employing  the  labor  necessary,"  there  certainly  could  be 
no  objection  to  the  city's  using  the  method  of  direct  construction. 
In  the  case  of  Clouse  v.  San  Diego l  the  city  had,  under  the  re- 
quirements of  general  law  specifically  adopted  by  the  charter, 
issued  bonds  for  certain  street  improvements.  The  general  law 
in  question  expressly  provided  that  the  work  paid  for  out  of  the 
proceeds  of  such  an  issue  of  bonds  should  be  let  by  contract. 
The  city  charter  was  silent  as  to  the  manner  in  which  the  work 
should  be  undertaken.  The  city  claimed,  however,  that  while 
the  method  of  securing  money  for  this  purpose  was  by  the  charter 
made  subject  to  the  control  of  the  law,  yet  the  power  to  issue  the 
bonds  in  question  was  conferred  by  the  charter  and  not  by  the 
law  and  that  the  manner  of  doing  the  work  was  a  municipal  affair 
which  was  not  subject  to  control  by  general  law.  The  court 
answered  this  contention  as  follows : 

Whether  we  regard  the  authority  to  raise  the  fund  as  being  derived 
from  the  charter  which  has  adopted  the  method  of  the  Vrooman  Act,  or 
from  that  general  statute  itself,  the  fact  remains  that  no  scheme  of  ex- 
penditure has  been  provided  in  the  charter  for  the  payment  of  this  money, 
and  we  are  convinced  that  the  statute  of  1901  must  be  followed  and  the 
work  must  be  done  according  to  contract  as  therein  commanded.  While 
the  city  does  confer  certain  powers  upon  the  common  council  in  the  matter 
of  laying  and  repairing  streets  and  the  like,  no  rules  are  made  by  the 
charter  for  the  payment  of  the  money  used  in  such  improvement. 

The  cases  here  noted  as  to  the  power  of  a  city  in  framing  a 
charter  for  its  own  government  to  regulate  matters  relating  to 
street  improvements  and  other  public  works  are  not  of  importance 
as  settling  the  point  that  provisions  in  respect  to  this  matter  may 
properly  be  included  in  such  a  charter,  for  the  reason  that  no  con- 
tention to  the  contrary  has  ever  been  made.  Taken  as  a  whole, 
however,  they  indicate  clearly  that  such  matters  are  entirely 
within  the  scope  of  the  city's  powers. 

i  159  Cal.  434.     1911. 


340     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

7s  the  Power  to  levy  Taxes  included  in  the  Power  to  frame  a  Charter  ? 

The  question  of  the  competence  of  the  city  which  frames  its 
own  charter  to  exercise  the  power  of  taxation  has  been  raised  in 
only  a  single  case  in  California  and  it  is  probable  that  such  an 
absurd  question  would  not  have  been  raised  at  all  had  it  not  been 
for  a  specific  provision  of  the  constitution  which  referred  to  the 
delegation  of  the  power  of  taxation  to  municipal  corporations  "by 
general  laws."  In  the  case  of  Security  Savings  Bank  etc.  Co. 
v.  Hinton1  the  court  sustained  the  right  of  a  home  rule  city  to 
exercise  such  power  by  the  following  line  of  reasoning : 

This  argument  is  based  upon  section  12  of  article  XI  of  the  constitu- 
tion, which  is  as  follows:  "The  legislature  shall  have  no  power  to  im- 
pose taxes  upon  counties,  cities,  towns,  or  other  public  or  municipal  cor- 
porations, or  upon  the  inhabitants  or  property  thereof,  for  county,  city, 
town,  or  other  municipal  purposes,  but  may,  by  general  laws,  vest  in  the 
corporate  authorities  thereof  the  power  to  assess  and  collect  taxes  for  such 
purposes." 

But  the  authority  given  by  the  constitution  to  frame  and  adopt  ^'a 
charter  for  its  own  government,"  which  "shall  become  the  organic  law 
thereof,"  is  comprehensive  enough  to  authorize  a  provision  such  as  that 
contained  in  the  charter  of  the  City  of  Los  Angeles  providing  for  taxation 
for  municipal  purposes.  .  .  . 

It  is  undoubtedly  true  that  the  legislative  branch  of  the  government 
has  the  exclusive  power  of  taxation,  except  so  far  as  that  power  is  re- 
strained by  the  constitution,  or  delegated  by  the  legislature  or  the  con- 
stitution to  local  municipalities.  But  by  section  12  of  article  XI,  above 
quoted,  the  legislature  is  prohibited  from  imposing  taxes  upon  counties, 
cities,  towns,  or  other  municipal  corporations  for  municipal  purposes. 
It  must  therefore  follow  that  in  authorizing  freeholders'  charters,  which 
the  legislature  cannot  change  or  amend,  the  power  of  taxation  being 
essential  to  municipal  existence,  that  power  is  necessarily  implied. 


Has  the  City  the  Power  to  regulate  the  Filing  and  Prosecution  of  Tax 
or  Damage  Claims  against  the  City  Itself  ? 

In  the  case  of  the  Farmers  and  Merchants  Bank  v.  Los  Angeles2 
the  provisions  of  the  freeholders'  charter  which  required  that  no 

1  97  Cal.  214  (1893) ;  see  also  supra,  173.  2  151  Cal.  655.     1907. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    341 

suit  should  be  brought  upon  any  claim  against  the  city  until  such 
claim  had  been  presented  to  and  demand  made  of  the  city  council 
were  sustained.  It  was  held  that  one  who  had  paid  taxes  under 
protest  could  not  sue  the  city  to  recover  unless  he  had  satisfied 
this  charter  requirement.  The  point  seems  not  to  have  been 
specifically  raised  that  the  imposition  of  such  a  requirement  was 
beyond  the  power  of  the  city.  The  main  contention  was  that 
the  charter  had  adopted  a  general  law  upon  this  subject  which 
allowed  suit  to  be  brought  without  the  presentation  of  any  claim. 
This  contention  the  court  rejected. 

Again  in  the  case  of  Grim  v.  City  and  County  of  San  Francisco l 
a  provision  of  the  city  charter  was  applied  which  required  that 
all  claims  for  damages  should  be  presented  within  six  months 
after  the  occurrence  under  which  the  said  damages  were  claimed. 
It  was  held  that  the  provision  in  question  acted  as  an  estoppel  to 
an  action  for  damages  where  no  claim  had  been  presented.  The 
point  as  to  the  power  of  the  city  to  impose  such  a  requirement  was 
leither  raised  nor  discussed. 

In  the  case  of  Sala  v.  City  of  Pasadena2  the  contention  seems 
to  have  been  specifically  made  that  a  provision  of  the  charter  of 
Pasadena  which  limited  the  time  in  which  a  property  owner  might 
make  claim  for  damages  resulting  from  a  street  improvement  was 
beyond  the  competence  of  a  city  framing  a  freeholders'  charter 
as  well  as  beyond  the  competence  of  the  state  itself.  This  con- 
tention was  rested  upon  the  guarantee  that  private  property 
should  not  be  taken  or  damaged  without  just  compensation. 
Judgment  was  reached  in  the  case  upon  the  ground  that  the  pro- 
vision of  the  city  charter  was  not  sufficiently  explicit  in  regard 
to  this  matter,  since  it  did  not  clearly  indicate  that  the  failure  of 
the  property  owner  to  make  his  claim  would  be  tantamount  to  a 
waiver  of  his  right  to  compensation.  As  to  the  power  of  the  city 
to  incorporate  in  the  charter  for  its  own  government  an  adequate 
provision  upon  this  subject,  the  following  opinion  was  expressed : 

It  is  not  questioned  that  the  changing  of  street  grades  is  essentially  a 
municipal  affair,  and  the  provisions  of  the  charter  that  are  set  forth  above 

i  152  Cal.  279.     1907.  2 162  Cal.  714.      1912. 


342  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

undoubtedly  establish  the  procedure  for  changing  grades  of  streets  in  the 
city  of  Pasadena.  .  .  . 

It  is  well  settled  that  the  state  legislature  in  the  matter  of  public  im- 
provements concerning  which  they  are  authorized  to  legislate,  may  re- 
quire the  property  owner  to  assert  his  claim  for  compensation  for  the 
taking  of  his  property  or  injury  thereto  before  the  commencement  of  the 
improvement,  upon  measurable  notice  of  the  proposed  taking  or  injury, 
may  prescribe  in  what  manner  and  within  what  time  he  shall  do  this, 
and  further  provide  that  this  failure  to  assert  a  claim  within  the  prescribed 
time  shall  operate  as  a  waiver  of  all  claims  and  constitute  a  bar  to  any 
subsequent  action  looking  either  to  a  prevention  of  the  work  or  the  mak- 
ing of  compensation.  It  is  further  settled  that  the  notice  in  such  case 
need  not  be  personal,  but  may  be  constructive,  as  by  advertising  or  post- 
ing. It  is  sufficient  that  the  notice  provided  is  such  as  may  reasonably 
be  held  to  afford  adequate  opportunity  for  knowledge  of  the  designed 
improvement  by  the  property  owner  who  exercises  reasonable  care  in  the 
matter  of  his  property.  .  .  . 

Undoubtedly,  similar  provision  may  be  made  in  a  freeholders'  charter. 

It  will  be  observed  that  in  these  cases  involving  charter  provi- 
sions regulating  the  manner  in  which  claims  against  the  city  should 
be  filed  and  prosecuted,  no  conflict  between  state  law  and  charter 
provision  was  urged  and,  except  in  the  case  last  mentioned,  the 
question  as  to  the  competence  of  the  city  was  not  clearly  an  issue 
at  bar.  It  is  perfectly  evident  that  in  the  first  case,  where  there 
was  involved  the  matter  of  a  claim  for  taxes,  the  constitutional 
guarantee  of  due  process  of  law  might  have  been  set  up  with  more 
propriety  than  in  the  last  case,  where  the  claim  was  one  based  upon 
injury  resulting  from  a  street  improvement.  In  the  case  of  the 
tax  claim  the  city  was  the  plaintiff,  the  aggressor  against  the  prop- 
erty owner,  and  under  the  doctrine  of  the  Missouri  court1  dis- 
tinction might  have  been  drawn  between  a  time  limitation  im- 
posed upon  a  person  asserting  such  a  claim  and  the  imposition  of 
a  time  limit  upon  a  person  who  himself  initiated  an  action  against 
the  city  for  damages  resulting  from  injury  to  himself  or  his  prop- 
erty for  which  the  city  might  be  held  liable.  The  fact  is,  however, 
that  no  such  distinction  was  made  or  even  referred  to  by  the  Cal- 
ifornia court  in  this  tax  claim  case. 

1  Supra,  168,  169. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    343 

The  conclusion  must  be  reached  that,  at  least  from  the  few 
cases  of  record,  the  California  courts  have  been  exceedingly  liberal 
in  their  attitude  toward  the  authority  of  a  home  rule  city  to  in- 
corporate in  its  own  charter  provisions  regulating  the  rights  of 
private  persons  to  present  claims  against  the  municipal  corporation. 

Has  the  City  the  Power   to  regulate  Matters  pertaining  to  Public 

Health?    , 

Attention  has  already  been  called  to  the  only  important  Cali- 
fornia case,  People  ex  rel.  Lawlor  v.  Williamson,1  which  has  turned 
upon  the  question  of  the  authority  of  a  city  to  regulate  in  a  charter 
for  its  own  government  matters  relating  to  public  health.  This 
case,  it  will  be  recalled,  really  concerned  only  a  question  of  the 
power  of  the  city,  for  it  was  a  proceeding  in  the  nature  of  a  quo 
warranto  to  test  the  legality  of  a  board  of  health  created  by  the 
first  freeholders'  charter  of  San  Francisco.  It  was  pointed  out 
when  this  case  was  under  detailed  discussion  that  the  judges  of 
the  supreme  court  were  unanimously  of  the  opinion  that  the  power 
control  matters  pertaining  to  the  public  health  was  properly 
braced  within  the  scope  of  authority  to  frame  a  charter  for 
he  government  of  a  city,  although  the  members  of  the  court 
were  not  agreed  as  to  whether  the  control  of  public  health  was  or 
was  not  a  municipal  affair.  As  the  case  stands  upon  the  books, 
it  being  the  sole  expression  of  the  law  upon  this  subject,  it  seems 
fairly  reasonable  to  conclude  that  a  city  framing  a  freeholders' 
charter  is  competent  to  regulate  matters  pertaining  to  the  public 
health  whether  such  matters  are  or  are  not  to  be  regarded  as  mu- 
nicipal affairs.  In  other  words,  even  though  health  be  regarded  as 
a  state  affair  the  city  is  competent  to  subject  it  to  regulation  under 
the  terms  of  its  charter,  at  least  to  the  extent  that  it  has  not  been 
subjected  to  the  control  of  state  law.  Certainly  this  was  the 
opinion  of  some  of  the  judges  in  the  Williamson  case  and  it  seems 
to  be  as  fair  a  statement  of  the  existing  law  as  it  is  possible  under 
the  circumstances  to  make. 

1 135  Cal.  415  (1902) ;  supra,  287. 


344     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Has  the  City  the  Power  to  regulate  Matters  pertaining  to  Public 
Education  to  the  Extent  that  such  Matters  are  not  controlled  by 
State  Law  f 

We  have  already  noted  the  uncertain  state,  of  the  law  in  Califor- 
nia upon  the  subject  of  the  relation  of  superiority  and  inferiority  as 
between  state  laws  and  charter  provisions  relating  to  the  matter  of 
education.1  The  case  of  Barthel  v.  Board  of  Education  2  involved 
the  question  of  the  power  of  a  city  to  control  a  matter  relating  to 
education  where  there  was  no  provision  of  the  general  law  regu- 
lating the  matter  at  issue.  It  was  there  held 3  that  a  public  school 
teacher  who  had  "a  city  certificate"  as  required  by  general  law 
was  protected  by  this  law  in  the  matter  of  removal  from  office,  but 
that  if  he  had  no  such  certificate  the  provisions  of  the  charter  in 
respect  to  removal  applied  since  the  general  law  was  silent.  "It 
is  not,"  said  the  court,  "and  cannot  be  claimed  that  the  election 
and  dismissal  of  teachers  in  the  public  schools  is  a  municipal  affair, 
which  may  be,  by  a  freeholders'  charter,  regulated  in  a  manner  in 
conflict  with  that  provided  by  general  law."  In  other  words,  it 
was  clearly  the  doctrine  of  this  case  that  in  the  absence  of  statu- 
tory requirement  a  matter  pertaining  to  public  education,  which 
was  emphatically  declared  to  be  of  state  concern,  might  neverthe- 
less be  regulated  by  the  provisions  of  a  freeholders'  charter. 

In  the  case  of  Bannerman  v.  Boyle,4  however,  the  court  appears 
to  have  been  somewhat  less  certain  upon  this  point.  The  case 
arose  out  of  a  contest  over  a  removal  made  by  the  mayor  of  San 
Francisco  of  a  member  of  the  board  of  education.  It  was  held  by 
the  court  that  the  act  of  removal  was  void  because  it  had  not  been 
performed  in  compliance  with  the  requirements  of  the  city  charter. 
At  the  conclusion  of  the  opinion  rendered  the  court  declared  : 

We  have  also  assumed  that  it  was  competent  for  the  charter  of  San 
Francisco  to  provide  for  the  removal  of  a  member  of  the  board  of  educa- 

1  Supra,  295-308.  2 153  Cal.  376.     1908. 

8  Citing  Kennedy  v.  Miller,  supra,  295,  and  Mitchell ».  Board  of  Education,  137  Cal. 
372  (1902).  This  latter  case  contained  a  dictum  that  was  somewhat  in  point,  but 
the  pertinent  parts  of  the  opinion  are  of  no  avail  in  connection  with  our  study  here. 

4 160  Cal.  197.     1911. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    345 

tion,  although  he  may  be,  in  law,  an  officer  of  the  state,  administering  a 
branch  of  the  state  school  system,  and  the  constitution  (Art.  XI,  sec.  8i), 
it  is  claimed,  does  not  expressly  allow  the  city  charter  to  do  more  than 
fix  his  term  of  office  and  the  time  and  mode  of  appointment  or  election.1 
We  find  it  unnecessary  to  decide  either  of  these  propositions,  and  we  ex- 
press no  opinion  concerning  them. 

It  cannot  be  said  that  the  court  here  repudiated  the  doctrine  of 
the  Barthel  case.  It  merely  refused  to  express  any  opinion  con- 
cerning the  competence  of  the  city  in  this  regard.  The  conclusion 
seems  justified,  therefore,  that  under  the  power  to  frame  a  charter 
for  its  own  government  a  city  may,  under  the  California  adjudi- 
cations, control  a  matter  pertaining  to  public  education  which  is 
not  controlled  by  state  law.  It  may  be  remarked,  however,  that 
in  point  of  fact  matters  relating  to  education  are  in  California  so 
fully  regulated  by  state  law  that  the  opportunity  for  the  city  to 
enter  the  field  of  control  is  practically  negligible. 

tas  the  City  the  Power  to  control  privately  owned  Public  Utilities  f 

As  the  California  constitution  of  1879  came  from  the  convention 
lat  drafted  it  every  city  of  the  state,  home  rule  or  otherwise,  was 
>ecifically  required  to  fix  annually  the  rates  to  be  charged  by  per- 
sons or  corporations  supplying  water  to  the  city  and  its  inhabi- 
tants ; 2  and  it  was  elsewhere  expressly  provided  as  follows : 3 

In  any  city  where  there  are  no  public  works  owned  and  controlled  by 
the  municipality  for  supplying  the  same  with  water  or  artificial  light, 
any  individual,  or  any  company  duly  incorporated  for  such  purpose  under 
and  by  authority  of  the  laws  of  this  State,  shall,  under  the  direction  of 
the  superintendent  of  streets,  or  other  officer  in  control  thereof,  and  under 
such  general  regulations  as  the  municipality  may  prescribe  for  damages 
and  indemnity  for  damages,  have  the  privilege  of  using  the  public  streets 
and  thoroughfares  thereof,  and  of  laying  down  pipes  and  conduits  therein, 
and  connections  therewith,  so  far  as  may  be  necessary  for  introducing 
into  and  supplying  such  city  and  its  inhabitants  either  with  gaslight 
or  other  illuminating  light,  or  with  fresh  water  for  domestic  and  all 
other  purposes,  upon  the  condition  that  the  municipal  government  shall 
have  the  right  to  regulate  the  charges  thereof. 

1  [As  to  the  constitutional  provision  here  referred  to,  see  infra,  371.] 
'Art.  XIV,  sec.  1.  3  Art.  XI,  sec.  19. 


346  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  is  to  be  observed  that  by  this  provision  potential  competition 
in  the  utilities  of  water  and  light  was  definitely  established.  Legal 
monopoly  could  exist  only  in  case  the  city  itself  preempted  the 
field.  The  conditions  named  were :  (1)  that  the  privilege  of 
using  the  streets  should  be  "  under  the  direction  of  the  superin- 
tendent of  streets  or  other  officer  in  control  thereof";  (2)  that  it 
should  be  "under  such  regulations  as  the  municipality  may  pre- 
scribe for  damages  and  indemnity  for  damages"  (presumably  to 
abutting  owners) ;  and  (3)  that  the  city  should  have  the  power 
to  fix  rates.  It  would  seem  that  there  could  be  no  question  what- 
ever concerning  the  power  of  a  city  under  a  freeholders'  charter  to 
regulate  these  specific  utilities  as  to  these  designated  matters.  It 
is  certain  that  all  cities  of  the  state  did,  as  they  were  compelled  to 
do,  regulate  water  rates ;  and  it  is  also  certain  that  many  cities 
provided  in  their  charters  for  the  regulation  of  gas  and  electric 
rates.1  But  strange  to  relate,  one  of  the  most  serious  complaints 
that  was  made  in  1911,  when  an  amendment  to  this  section  was 
proposed  and  adopted,  was  that  a  city  "had  no  power  to  prescribe 
the  manner  of  tearing  up  its  streets,  how  long  they  should  be  torn 
up,  or  when  they  should  be  put  down  and  repaired." 2  This  was 
certainly  most  astounding.  The  constitution  expressly  recognized 
that  the  use  of  the  streets  should  be  under  the  direction  of  the 
officer  hi  control  of  streets.  What  possible  directions  could  such 
officer  give  if  the  city  itself,  or  he  as  its  representative,  could  not 
regulate  just  such  matters  as  these?  No  case  of  supreme  court 
record  in  the  state  ever  held  that  the  city  lacked  these  powers; 
and  the  conclusion  seems  unescapable  that  if  San  Francisco  - 
the  city  expressly  referred  to  —  failed  to  control  the  tearing  up 
of  its  streets  by  utility  corporations,  the  municipal  authorities 
were  culpably  derelict  in  their  duty  in  not  fighting  the  question  of 
their  power  into  the  highest  court  of  the  state,  where  it  is  unbe- 
lievable that  the  competence  of  the  city  in  this  regard  would  have 

1  "No  question  arises  over  the  right,  duty,  and  power  of  the  city  council"  to 
regulate  electric  light  rates.     Ex  parte  Goodrich,  160  Cal.  410  (1911).     This  case 
concerned  only  the  broad  question  as  to  when  rates  were  confiscatory. 

2  Remarks  of  State  Senator  Reed  in  Transactions  of  the  Commonwealth  Club  of 
California,  VI,  pp.  288  ff. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    347 

been  denied.  The  United  States  Supreme  Court,  construing  this 
section  of  the  California  constitution  in  a  connection  to  be  referred 
to  below,  said:  "It  is  at  once  apparent  that  .  .  .  the  power  of 
the  city  to  supervise  the  execution  of  the  work"  of  laying  gas 
mains  "was  expressly  secured  by . the  constitutional  provision."1 
Such  was  manifestly  the  unmistakable  implication,  if  not  the 
direct  declaration,  of  the  clause  in  question. 

Several  matters,  however,  in  connection  with  the  power  of  home 
rule  cities  over  privately  owned  utilities  were  left  wholly  unsettled 
by  this  provision  of  the  constitution.  Could  the  city  impose  upon 
water  and  lighting  companies  other  conditions  than  the  three 
enumerated  in  the  constitution?  Could  it,  for  example,  require 
extensions  and  improvements  of  service,  prescribe  a  system  of 
accounts,  control  the  issue  of  corporate  securities?  And  to  what 
extent,  if  any,  could  the  city  regulate  and  control  the  purveyors 
of  other  public  services  than  those  specifically  mentioned  in  the 
constitution,  such,  for  example,  as  street  railway  companies,  tele- 
)hone  companies,  and  power  and  heating  companies  (at  least 

There  the  latter  were  furnishing  services  not  in  connection  with 

ie  supplying  of  light)?    These  questions  may  be  considered 

iefly. 

As  to  the  first  of  them,  it  may  be  remarked  that  the  city  evi- 
iently  could  not  impose  conditions  that  would  in  effect  deny  to 
persons  or  corporations  seeking  to  use  the  streets  for  the  supply  of 
water  or  light  a  privilege  that  was  expressly  granted  by  the  con- 
stitution. Apparently,  therefore,  the  city  was  powerless  to  re- 
quire that  such  persons  or  corporations  enter  into  a  franchise 
contract  with  the  city;  for  this  would  obviously,  if  it  were  a 
contract  at  all,  involve  the  right  of  the  city  to  refuse  consent  —  a 
consent  which  was  plainly  not  contemplated  by  the  constitution.2 

1  Russell  ».  Sebastian,  233  U.  S.  195.     1913. 

2  On  the  point  that  the  direct  grant  made  by  the  constitution  did  not  require 
action  by  either  the  legislature  or  the  city,  see  Peoples.  Stephens,  62  Cal.  209  (1882) ; 
Pereria  v.  Wallace,  129  Cal.  397  (1900)  ;    In  re  Johnston,  137  Cal.  115  (1902)  ; 
Denninger  v.  Recorder's  Court,  145  Cal.  629  (1904) ;   Stockton  Gas  &  Electric  Co. 
v.  San  Joaquin  County,  148  Cal.  313  (1905)  ;  South  Pasadena  v.  Pasadena  Land  & 
Water  Co.,  152  Cal.  579  (1908). 


348  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Moreover,  apparently  the  city  could  not  deny  to  these  persons  or 
corporations  the  right  to  use  even  streets  that  were  already  being 
adequately  supplied  with  one  of  these  utilities.  Potential  com- 
petition was  the  very  essence  of  the  provision ;  and  the  extent  to 
which  a  street  could  be  occupied  by  rival  companies  was  doubtless 
limited  only  by  the  physical  capacity  of  the  street  to  hold  the 
necessary  mains,  pipes,  and  conduits.1 

It  was  asserted  broadly  in  1911,  when  this  section  of  the  consti- 
tution was  made  the  subject  of  amendment,  that  the  cities  of  Cali- 
fornia were  powerless  to  compel  expenditures  to  improve  service, 
or  to  force  extensions  of  service,  or  to  regulate  the  issue  of  secur- 
ities, or  to  control  the  keeping  of  accounts.2  This  lack  of  powers, 
if  such  it  was,  could  certainly  not  be  predicated  upon  judicial 
declaration,  for  the  competence  of  the  city  in  these  respects  appears 
never  to  have  been  brought  before  the  courts  for  determination. 
The  probable  truth  of  the  matter  is  that  no  city  of  California  ever 
attempted  to  control  the  issue  of  stocks  and  bonds  by  a  utility 
corporation  or  to  impose  a  system  of  accounts  upon  it.  Whether 
or  not  the  city  under  a  freeholders'  charter  might  have  exercised 
such  power  is  purely  a  matter  of  speculation.  It  is  probably  true 
also  that  many  improvements  and  extensions  of  service  have  been 
compelled  by  various  cities.  In  a  dictum  of  the  United  States 
Supreme  Court  touching  upon  this  point,  it  was  declared  that  "it 
would  not  be  said  that  either  a  water  company  or  a  gas  company 

1  It  has  been  asserted  that  certain  points  in  the  streets  of   San  Francisco  are 
already  so  crowded  with  the   distributing  systems  of   public  utility  corporations 
that  a  new  pipe  line  could  not  be  introduced.     It  would  seem,   however,   that 
under  the  apparent  power  of  the  city  to  direct  the  manner  in  which  the  streets 
might  be  used  such  a  situation  might  be  rectified  or  at  least  might  have  been 
prevented. 

2  "When  it  comes  to  regulating  the  capitalization  of  a  corporation  or  in  any 
way  controlling  its  stock  or  bond  issues  or  its  expenditures  required  to  improve  the 
service,  why,  our  powers  as  municipal  officers  are  very  deficient.     We  cannot 
compel  a  water  company,  for  instance,  to  extend  its  mains,  no  matter  how  deficient 
a  given  part  of  a  city  may  be  in  water  supply  or  fire  protection ;  we  cannot  compel 
a  gas  company  to  extend  its  mains  to  supply  any  particular  portion  of  the  city. 
We  can,  perhaps,  when  they  have  once  extended  their  services  compel  them  to 
maintain  and  to  supply  a  certain  quantity  and  quality  of  service."     Remarks  of 
Mr.  Mason  in  Transactions  of  the  Commonwealth  Club  of  California,  VI,  p.  370. 


'HE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    349 

;ablishing  its  service  under  the  constitutional  grant,  could  stop 
mains  at  its  pleasure  and  withhold  its  supply  by  refusing  to 
>nd  its  distributing  conduits  so  as  to  meet  the  reasonable  re- 
[uirements  of  the  community."  The  duty  to  serve  and  the  right 
serve,  said  the  court,  "were  correlative."  l  Under  this  view  it 
uld  seem  that  if  the  cities  of  California  failed  to  require  that  im- 
)rovements  and  extensions  of  service  be  made  by  the  persons  and 
>rporations  that  occupied  their  streets  for  the  supplying  of  water 
id  artificial  light,  that  failure  must  be  ascribed  to  their  voluntary 
[activity  and  not  to  the  law  governing  their  legal  competence. 
There  seems  to  have  been  likewise  a  distressing  amount  of  uncer- 
tainty concerning  the  power  of  cities  to  regulate  and  control  the 
public  service  corporations  not  specifically  mentioned  in  the  con- 
stitution. It  passes  comprehension,  for  example,  how  it  could  be 
seriously  asserted  that  "by  virtue  of  the  powers  granted  in  this 
section  .  .  .  the  telephone  company,  and  now  a  heat  and  power 
company,  have  dug  up  the  public  thoroughfares  of  San  Francisco 
when  and  where  they  pleased,  and  have  repaired  them  when  and 
how  they  pleased." 2  It  may  well  have  been  that  the  companies 
in  question  had  in  fact  committed  the  outrages  alleged ;  but  they 
certainly  did  not  do  so  under  the  authority  of  the  constitutional 
provision  referred  to.  This  provision  made  no  allusion  whatever 
to  companies  of  this  character.  In  fact  the  constitution  was 
wholly  silent  as  to  any  utilities  save  water  and  artificial  light. 

In  our  discussion  of  the  relation  between  state  laws  and  charter 
provisions  under  the  municipal  affairs  amendment,  attention  was 
called  to  the  case  of  the  Sunset  Telephone  &  Telegraph  Co.  v. 
Pasadena.3  There  it  was  held  that  an  ordinance  enacted  pursuant 
to  the  authority  of  a  freeholders'  charter  which  made  it  unlawful 
to  erect  or  maintain  telegraph  or  telephone  poles  for  use  in  local  or 
intrastate  business  without  a  "franchise  or  privilege"  from  the 
;ity  was  an  ordinance  governing  a  municipal  affair  which  was  not 
ibject  to  the  control  of  a  conflicting  state  law.  Certainly  this 

>  Russell  ».  Sebastian,  233  U.  S.  195.     1913. 

2  Transactions  of  the  Commonwealth  Club  of  California,  VI,  p.  390. 

a  161  Cal.  265  (1911) ;  supra,  309. 


350     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

case,  although  it  involved  a  question  of  conflict  rather  than  of 
power,  may  be  said  to  support  the  doctrine  that  a  home  rule  city 
has  some  power  to  control  those  public  service  corporations  that 
were  not  specified  in  the  constitution.  It  has  the  power  to  require 
a  local  franchise,  which  power,  as  we  have  seen,  it  does  not  have 
over  companies  supplying  water  and  artificial  light. 

But  a  franchise  is  an  exceedingly  variable  thing.  It  may  impose 
almost  negligible  restrictions  upon  the  person  or  corporation  accept- 
ing it,  or  it  may  contain,  hi  view  of  the  fact  that  it  is  a  contract 
voluntarily  entered  into,  the  most  elaborate  stipulations  for  public 
regulation  and  control.  The  character  of  the  franchise  required 
of  the  Sunset  Telephone  Company  was  not  disclosed  or  discussed  ; 
but  the  competence  of  the  city  to  demand  a  franchise  as  a  pre- 
requisite for  the  peculiar  use  of  its  streets  by  such  a  utility  corpo- 
ration —  control  over  its  streets  being  a  municipal  affair  —  was 
unqualifiedly  sustained.  It  would  seem,  therefore,  that  the  right 
of  the  city  to  impose  any  conditions  that  it  chose  was  unmistakably 
recognized.  In  other  words,  the  authority  of  the  city  to  exercise 
through  the  medium  of  a  freeholders'  charter  complete  control 
over  every  phase  of  a  public  utility  business  (barring  water  and 
lighting  companies)  is  clearly  supportable  under  the  broad  doctrine 
laid  down  in  that  case. 

In  point  of  fact  it  is  doubtful  whether  any  city  of  California  has 
attempted  to  exercise  the  full  limit  of  its  possible  powers  in  this 
direction.  In  practice,  however,  the  charters  of  certain  cities  have 
conferred  upon  some  organ  of  the  local  government  power  to  reg- 
ulate the  rates  for  all  public  utility  services.1  In  practice,  also,  the 
charters  of  certain  cities  assumed  to  regulate  a  few  other  matters 
connected  with  the  control  of  public  utilities.  For  example,  the 
charter  of  San  Francisco  regulates  in  considerable  detail  the  man- 
ner in  which  franchises  may  be  granted  and  prescribes  the  funda- 
mental provisions  of  all  franchises.2  The  charter  of  Los  Angeles, 

1  See,  for  example,  Oakland  charter  of  1910,  sec.  146 ;  amendments  of  1905  and 
of  1911  to  Los  Angeles  charter  of  1889,  Art.  I,  sees.  25,  40,  41,  and  Art.  XV;   San 
Francisco  charter  of  1900  as  amended  to  1911,  Art.  II,  ch.  2,  sees.  4-7. 

2  Charter  of  1900  as  amended  to  1911,  Art.  II,  ch.  2,  sees.  5,  6,  7;  Art.  Ill,  ch. 
2,  sees.  7a,  7b,  7c. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    351 

by  an  amendment  of  1911  creating  a  board  of  public  utilities 
endowed  with  large  powers  to  regulate  and  control  all  utility 
corporations  after  the  manner  of  certain  state  commissions,  has 
gone  farther  in  this  direction  than  that  of  any  other  city  of  the 
state.  The  competence  of  the  city  to  establish  such  extensive 
control  has  not  been  questioned  before  the  courts. 

It  must  be  admitted  that  the  constitution  of  1879  limited  the 
power  of  cities  over  utility  corporations  to  the  extent  that  a  cor- 
poration desiring  to  supply  water  or  artificial  light  could  not  be 
absolutely  prevented  from  using  the  streets  and  could  not  be 
compelled  to  operate  under  a  local  franchise.  With  the  primary 
end  in  view  of  abolishing  this  situation  the  clause  of  section  nine- 
teen dealing  with  this  subject  was  amended  in  1911  so  as  to  read 
as  follows : 

Persons  or  corporations  may  establish  and  operate  works  for  supply- 
ing the  inhabitants  with  such  services  [light,  water,  power,  heat,  trans- 
portation, telephone  service,  or  other  means  of  communication]  upon 
such  conditions  and  under  such  regulations  as  the  municipality  may  pre- 
scribe under  its  organic  law,  on  condition  that  the  municipal  government 
shall  have  the  right  to  regulate  the  charges  thereof. 

The  phrasing  of  this  provision  was  not  free  from  ambiguity. 
Did  it  mean  that  municipal  corporations  were  from  this  time  on 
empowered  to  impose  upon  persons  or  corporations  already  sup- 
plying water  or  artificial  light  such  conditions  and  such  regulations 
as  it  might  deem  expedient  ?  Could  the  city  thereafter  require 
such  persons  and  corporations  to  purchase  a  franchise ;  and  could 
they  be  forbidden  to  extend  their  services?  Or  did  it  mean  that 
complete  control  of  this  character  could  be  exercised  only  over 
persons  and  corporations  which  might  in  the  future  seek  to  estab- 
lish and  operate  these  works?  There  can  be  little  question  that 
those  who  originated  and  promoted  this  amendment  thought  that 
its  effect  would  be  "to  restore  to  the  cities  of  California  the  control 
of  their  public  streets,  which  was  taken  away  from  them  by  the 
constitution  of  1879,  in  section  19  of  Article  XL"  *  And  this  was 
likewise  the  view  of  the  supreme  court  of  the  state  expressed  in 

1  Transactions  of  the  Commonwealth  Club  of  California,  VI,  p.  390. 


352     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  case  of  the  Matter  of  Russell.1    The  following  facts  were 
involved  in  that  case. 

Acting  under  the  assumption  that  complete  power  to  control 
had  been  vested  hi  the  city  by  the  amendment,  Los  Angeles 
promptly  enacted  an  ordinance  forbidding  any  person  to  lay  or 
maintain  pipes  or  conduits  in  any  street  without  having  obtained 
a  grant  from  the  city  in  accordance  with  the  terms  of  its  charter, 
and  declaring  it  to  be  unlawful  for  any  person  to  make  excavations 
in  the  streets  for  any  purpose  without  written  permission  from  the 
board  of  public  works.  The  charter  of  the  city  as  amended  in 
1905  and  hi  the  spring  of  1911  contained  somewhat  elaborate 
provisions  concerning  the  procedure  for  granting  and  the  content 
of  all  franchises.  The  obvious  intent  of  these  ordinances  was  to 
apply  these  charter  provisions  to  existing  lighting  companies  (the 
city  owned  its  waterworks)  at  least  as  to  future  extensions  of 
service.  The  Economic  Gas  Company,  whose  agent,  Russell,  was 
arrested  for  violating  the  ordinance  prohibiting  excavations, 
claimed  apparently  that  the  amendment  of  1911  did  not  confer 
upon  cities  additional  powers  over  water  and  lighting  companies 
already  in  operation,  and  that  if  it  did  it  impaired  the  obligation 
of  such  companies'  contracts  with  the  state,  invading  property 
rights  which  had  become  vested  under  the  former  provisions  of 
the  constitution.  The  court  held  that  as  to  privately  operated 
utilities  of  the  kinds  enumerated,  the  " design"  of  the  amendment 
"was  to  place  them  all  in  control  of  the  municipality;"  and  that 
following  out  this  design,  "the  provision  expressly  limits  the 
preexisting  powers  and  rights  available  to  private  corporations 
and  natural  persons."  They  were  permitted  henceforth  "to 
engage  in  such  enterprises"  only  "upon  such  conditions  and  under 
such  regulations  as  the  municipality  may  prescribe."  It  was 
further  decided  that  the  grant  under  the  former  constitutional 
provision  of  the  privilege  of  using  the  streets  took  effect  only  by 
acceptance ;  that,  since  no  written  acceptance  was  necessary,  the 
only  effectual  manifestation  of  acceptance  was  the  act  of  taking 
possession  of  the  streets;  and  that  in  consequence  the  vested 

1  163  Cal.  668.     1912. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    353 

rights  of  the  company  extended  only  to  its  rights  in  the  streets 
already  occupied.  On  this  ground  the  ordinances  prohibiting  the 
laying  of  pipes  in  new  streets  were  sustained. 

The  decision  of  the  California  court  upon  this  latter  point  was 
reversed  by  the  Supreme  Court  of  the  United  States  in  the  case  of 
Russell  v.  Sebastian.1  It  was  there  held  that  the  grant  of  privilege 
under  the  old  provision,  "  resulting  from  an  acceptance  of  the 
State's  offer/'  was  "not  a  revocable  license  but  constituted  a 
contract,  and  vested  in  the  accepting  individual  or  corporation  a 
property  right,  protected  by  the  federal  constitution."  And  it 
was  further  held  that  this  property  right,  when  once  accepted  by 
any  construction  of  plant  and  occupancy  of  the  streets,  was  the 
"right  to  lay  pipes"  and  was  not  limited  to  the  right  to  use  pipes 
already  laid.  To  hold  otherwise  would  be  "to  assume,  despite 
the  explicit  statement  of  the  constitutional  provision,  that  the 
investment  in  extensive  plants  —  in  the  construction  of  reservoirs, 
and  in  the  building  of  manufacturing  works  —  was  invited  with- 
out any  assurance  that  the  laying  of  the  distributing  system  could 
be  completed,  or  that  it  could  even  be  extended  far  enough  to 
afford  any  chance  of  profit.' 

There  can  be  little  question  that  this  interpretation  by  the 
highest  court  of  the  land  of  the  nature  of  the  grant  made  by  the 
old  provision  of  the  constitution  was  sound.  From  the  view- 
point of  the  public  the  weakness  of  the  situation  lay  in  the  foolish 
policy  deliberately  established  by  that  provision  —  a  policy  which 
the  Supreme  Court  referred  to  as  a  "unique  plan"  for  creating 
"the  competition  that  was  then  thought  to  be  desirable."  The 
point  of  importance,  however,  is  that  under  this  decision  control 
over  the  streets  of  the  cities  of  California,  so  far  as  they  are  used 
by  water  and  lighting  companies,  was  not  "restored"  at  all  by  the 
amendment  of  1911.  The  city  cannot  require  a  local  franchise  of 
persons  or  corporations  that  had  established  plants  and  distributing 
systems  for  the  supply  of  these  utilities  prior  to  October,  1911, 
whether  such  franchise  appertained  to  streets  already  occupied 
or  to  streets  to  be  occupied  at  any  future  time.  Such  persons 

i  233  U.  S.  195.     1913. 


354     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

and  corporations  enjoy  a  perpetual  franchise  referable  to  the  old 
constitutional  provision.  The  extent  of  local  control  is  precisely 
what  it  was  prior  to  the  adoption  of  the  amendment.  That 
extent  has  been  discussed  in  some  detail  above. 

Doubtless  the  city's  power  to  impose  " conditions"  and  " reg- 
ulations" upon  persons  and  corporations  that  may  in  the  future 
seek  to  enter  the  field  is  plenary,  extending  even  to  the  institution 
of  a  policy  of  legalized  monopoly  in  those  cases  where  two  compa- 
nies are  not  already  in  the  field.  But  the  practical  effect  of  the 
decision  just  mentioned  may  be  in  some  instances  to  create  actual 
monopolies  in  the  hands  of  the  companies  enjoying  perpetual 
rights  —  monopolies  which  could  be  broken  only  by  the  cities 
themselves  entering  into  competition.  For  it  may  well  be  that 
new  corporations  will  hesitate  to  enter  the  field  of  competition 
(under  limited  franchises  adequately  protecting  the  public) 
against  established  corporations  having  perpetual  franchises  and 
being  subject  to  a  degree  of  public  control  that  has  never  been 
fully  and  definitely  determined.  As  we  shall  see,  however,  the 
city  has  within  its  grasp  one  important  weapon,  the  weapon  of  mu- 
nicipal ownership  in  competition  with  privately  owned  enterprises. 
This  weapon  can  be  used  either  as  a  threat  to  compel  acquiescence 
in  all  reasonable  demands  made  upon  water  and  lighting  companies, 
or  as  a  means  of  actually  inaugurating  a  ruinous  competition  sup- 
ported by  the  fact  that  the  municipal  corporation  would  not  of 
necessity  be  dependent  upon  accruing  profits. 

In  concluding  this  subject  mention  must  be  made  of  another 
amendment  that  was  adopted  in  191 1.1  This  amendment  con- 
ferred upon  the  state  railroad  commission  plenary  powers  over 
all  public  utility  corporations  of  the  state.  Provision  was  made, 
however,  by  which  every  city  of  the  state  might  upon  a  referendum 
elect  to  retain  control  of  its  own  utilities  or,  having  voted  to  vest 
such  control  in  the  railroad  commission,  might  subsequently 
rescind  this  action  by  another  referendum.  The  powers  which  a 
municipality  might  thus  decide  to  retain  or  to  concede  were  "such 
powers  of  control  over  any  public  utility"  as  were  " vested  in  any 

1  Art.  XII,  sees.  2,  3. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    355 

city."  This  vague  phrase  did  not,  of  course,  define  in  any  wise 
the  powers  which  in  point  of  fact  are  so  vested  in  any  city.  As 
we  have  seen,  the  extent  of  these  powers  is  to  a  degree  at  least 
uncertain  and  varies  with  the  kind  of  utility  concerned.  Within 
three  years  after  the  adoption  of  this  amendment  six  of  the  smaller 
home  rule  cities  1  of  the  state,  as  well  as  a  number  of  minor  cities 
without  freeholders'  charters,  had  voted  to  turn  over  to  the  state 
commission  control  over  their  local  utilities.2 


Has  the  City  the  Power  to  own  and  operate  Public  Utilities  f 

Under  an  amendment  to  the  charter  of  San  Francisco  adopted 
in  1907,  broad  powers  of  public  utility  ownership  were  conferred 
upon  the  city  by  itself.3  "The  city  and  county  shall  have  power 
to  acquire,  construct,  or  complete  any  public  utility  .  .  .  and  may 
operate,  maintain,  sell,  or  lease  the  same."  So  ran  the  amend- 
ment. In  December,  1909  the  voters  approved  two  issues  of 
bonds  for  the  construction  of  street  railways  by  the  city,  and  a 
taxpayers'  action  was  instituted  in  the  case  of  Platt  v.  San 
Francisco4  to  prevent  these  issues  on  the  ground  that  the  power 
to  frame  a  charter  did  not  include  the  power  to  own  and  operate 
utilities.  Thus  spoke  the  court : 

We  do  not  understand  that  it  is  seriously  claimed  that  the  state  may 
not  invest  its  municipalities  with  the  power  to  acquire  and  operate  any 
such  necessary  public  utility  as  is  generally  owned  and  operated  in  a  city 
by  what  is  ordinarily  known  as  a  public  service  corporation,  such  as 
waterworks,  gas  or  electric  light  works,  street  railways,  etc.  .  .  . 

Of  course,  a  grant  by  the  state  of  such  powers  is  essential  to  its  exer- 
cise by  a  municipality,  municipalities  being  confined  to  the  exercise  of 
such  powers  as  are  expressly  or  by  necessary  implication  conferred  by 
the  state.  The  question  presented  here  is  whether  under  the  provisions 
of  our  constitution,  such  power  in  regard  to  public  utilities  can  be  granted 
or  conferred  by  the  state  by  provisions  contained  in  a  freeholders'  charter 
framed  by  the  municipality  itself  under  section  8  of  Article  XI  of  the 
constitution  and  approved  by  the  legislature  of  the  state  by  concurrent 
resolution.  .  .  . 

1  Monterey,  Palo  Alto,  Pomona,  Salinas  City,  San  Jos6,  and  Santa  Monica. 

2  National  Muncipal  Review,  4  :  114.         3  Art.  XII.         4  158  Cal.  74.     1910. 


356     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

But  it  seems  clear  to  us,  that,  under  our  system,  the  power  can  be 
so  conferred  or  granted,  and  that  action  by  the  state  legislature  other 
than  its  action  in  approving  the  charter  by  concurrent  resolution  is  in  no 
wise  essential. 

It  cannot  be  questioned,  in  view  of  our  decisions,  that,  as  to  all  matters 
properly  embraced  therein,  the  provisions  of  a  freeholders'  charter  so 
framed  and  approved  have  the  same  force  and  effect  as  they  would  have 
if  contained  in  a  special  charter  enacted  as  an  ordinary  law  by  a  legis- 
lature not  restrained  in  any  manner  by  constitutional  limitations.  The 
section  of  the  constitution  thus  referred  to  provides  a  special  mode  for 
the  enactment  of  the  "organic  law"  of  such  of  the  cities  having  the  requi- 
site population  as  desire  to  take  advantage  of  its  provisions.  .  .  . 

The  only  question,  then,  appears  to  be  whether  such  provisions  as  are 
here  involved  may  be  properly  included  in  a  freeholders'  charter,  or  to 
state  it  in  another  way,  is  it  within  the  scope  of  such  a  charter  to  define 
the  powers  that  shall  be  exercised  by  a  municipality  ?  It  is  only  by  find- 
ing some  limitation  in  our  constitution  as  to  freeholders'  charters  that 
distinguishes  them  from  ordinary  municipal  charters  that  any  but  an 
affirmative  answer  can  be  given  to  this  question.  .  .  .  There  is  no  dis- 
tinction material  to  the  question  we  are  considering  between  the  charters 
we  have  referred  to  [special  legislative  charters  still  in  existence  and  char- 
ters created  by  the  general  municipal  corporation  act]  and  the  freeholders' 
charters  provided  for  by  section  8  of  Article  XI  of  the  constitution.  The 
whole  purpose  of  the  scheme  of  such  freeholders'  charters  originally  was 
to  enable  any  city  having  more  than  a  certain  number  of  inhabitants, 
originally  100,000,  to  adopt,  subject  to  the  approval  of  the  legislature  in 
lieu  of  the  charter  provided  by  the  general  municipal  corporation  act  or 
the  old  special  legislative  charter,  such  a  charter,  to  use  the  language  of 
the  learned  trial  judge,  as  the  people  thereof  "deemed  appropriate  and 
adequate  to  its  situation  and  condition  and  the  full  and  proper  adminis- 
tration of  all  its  affairs."  The  charter  so  adopted  was  to  be  "the  charter 
of  such  city,"  and  "the  organic  law  thereof."  There  never  could  have 
been  any  suspicion  in  the  minds  of  the  framers  of  this  section  or  in  the 
minds  of  the  people  adopting  it  that  the  charter  thus  provided  for  should 
not  be  as  comprehensive  in  its  scope  as  the  ordinary  legislative  charter. 
That  such  charter  should  define  the  powers  which  the  city  should  have, 
and  that  the  adoption  and  approval  of  the  charter  in  the  manner  pro- 
vided should  confer  the  powers  (provided,  of  course,  no  law  of  the  state 
prohibited  the  conferring  of  such  powers)  just  as  in  the  case  of  the  ordi- 
nary legislative  charter,  was  so  obviously  intended  that  it  should  not  be 
necessary  to  discuss  the  matter  at  all. 

Learned  counsel  for  the  plaintiff  seek  to  find  a  limitation  on  the  scope 
of  such  freeholders'  charter  in  the  use  of  the  words  "for  its  own  govern- 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    357 

inent,"  in  the  permissive  provision  of  section  8  of  Article  XI.  ^Any  city 
.  .  .  may  frame  a  charter  for  its  own  government,"  etc.  The  theory 
appears  to  be  that  the  word  ^  government"  was  used  with  reference  to 
the  recognized  distinction  between  governmental  and  proprietary  powers 
of  a  municipality,  with  the  design  to  strictly  limit  the  powers  that  could 
be  conferred  by  such  a  charter  to  the  exercise  of  purely  public  and  govern- 
mental functions.  .  .  .  This  division  of  "municipal  functions"  exists 
for  certain  purposes,  among  which  is  the  purpose  just  stated  of  making 
municipalities  liable  to  private  action  in  certain  cases  (see  1  Dillon  on 
Municipal  Corporations,  sec.  67 ;  concurring  opinion  of  Justice  Shaw  in 
Davoust  v.  City  of  Alameda,  149  Cal.  69)  but  it  affords  no  warrant  what- 
ever for  the  narrow  and  unusual  meaning  sought  by  learned  counsel  to  be 
attributed  to  the  word  ^  government "  as  used  in  section  8  of  Article  XI 
of  the  constitution.  "Government"  is  denned  as  being  the  "exercise  of 
authority  in  the  administration  of  the  affairs  of  a  state,  community  or 
society"  (Century  Dictionary),  "the  act  of  governing,  or  the  state  of 
being  governed,  especially  the  authoritative  administration  of  the  affairs 
of  a  state,  or  other  community  "  (Standard  Dictionary).  These  defini- 
tions include  every  function  which  may  lawfully  be  allotted  to  a  munici- 
pality to  perform.  No  other  meaning  can  reasonably  be  attributed  to 
the  word  "government"  as  used  in  the  section  under  consideration.  To 
hold  otherwise  would  be  to  defeat  in  a  most  material  part  the  manifest 
purpose  of  the  whole  scheme  of  freeholders'  charters  which  we  have  here- 
inbefore described. 

This  opinion  calls  for  some  comment.  It  did  not  decide  whether 
the  question  of  municipal  ownership  was  a  municipal  or  a  state 
affair.  It  did  not  intimate  whether  a  state  law  upon  this  subject 
would  control  a  charter  provision.  It  simply  laid  down  the  broad 
doctrine  that  in  the  absence  of  a  governing  state  law  a  free- 
holders' charter  might  contain  any  grant  of  power  that  a  legisla- 
tive charter  might  contain.  In  other  words,  it  was  clearly  im- 
plied that  a  charter  provision,  even  though  it  related  to  a  matter  of 
state  concern,  could  not  be  impeached  upon  the  ground  that  the 
authority  to  frame  a  charter  did  not  include  the  power  to  incor- 
porate the  provision.  This  being  the  case,  it  was  only  when  the 
contention  could  be  made  that  the  provision  was  in  conflict  with 
a  state  law  that  it  became  necessary  to  inquire  into  the  inherent 
nature  of  the  subject  of  the  provision.  The  answer  to  any  question 
that  concerned  solely  the  power  of  a  city  in  framing  its  charter 


358  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

could  always  be  found. in  the  answer  to  another  question:  could 
the  legislature  have  incorporated  the  provision  in  a  legislative 
charter  ? 

It  will  be  noted  that  this  last  question  is  by  no  means  identical 
with  the  question  as  to  the  competence  of  the  legislature  to  dele- 
gate legislative  power.  Municipal  charters  commonly  do  entail 
a  delegation  of  legislative  power  and  such  delegation  has  univer- 
sally been  sustained  upon  historical  and  traditional  grounds.  But 
many  provisions  of  city  charters  involve  no  delegation  of  legisla- 
tive power  at  all.  They  are  themselves  the  concrete  expression 
of  such  power  directly  exercised.  They  are  simply  laws.  And 
whatever  the  legislature  may  enact  into  law  it  may  enact  into  a 
municipal  charter.  There  is  no  reason  why  such  matters  as  the 
recording  of  deeds  and  mortgages,  or  the  probation  of  wills  and 
the  administration  of  estates,  or  the  control  of  domestic  relations, 
or  the  definition  and  punishment  of  crimes,  or  the  organization  and 
procedure  of  courts  forming  a  part  of  the  judicial  organization  of 
the  state,  might  not  be  regulated  in  cities  by  charter  laws.  And 
occasionally  municipal  charters  of  legislative  origin  have  in  fact 
contained  provisions  that  trench  upon  such  fields  of  general 
legislation.  If,  then,  a  freeholders'  charter  may  include  any  pro- 
vision that  a  legislative  charter  might  embrace  (barring,  of  course, 
all  consideration  of  possible  conflicts  with  state  laws  on  a  subject 
of  state  concern),  it  is  manifest  that  the  scope  of  subjects  that  may 
be  dealt  with  in  such  a  charter  is  limited  not  by  any  vague 
notion  of  the  courts  as  to  the  appropriate  sphere  of  municipal 
activity  but  only  by  the  existing  body  of  state  laws  upon  subjects 
of  state  as  distinguished  from  local  concern.  If,  for  example, 
the  state  legislature  had  enacted  no  laws  concerning  combinations 
in  restraint  of  trade  or  workmen's  compensation  or  minimum 
wages,  such  matters  could  be  made  the  subject  of  charter  control. 
If  this  be  the  law  in  California,  it  is  certain  that  the  home  rule 
cities  of  that  state  have  not  as  yet  lived  up  to  the  full  measure 
of  their  constitutional  powers. 

Moreover,  it  is  certain  that  the  courts  of  California  have  not 
always  applied  this  test  to  the  ascertainment  of  the  city's  scope  of 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    359 

powers.  Otherwise  most  if  not  all  of  the  topics  considered  in 
this  chapter  would  furnish  no  material  for  discussion.  As  we 
have  seen,  it  has  been  clearly  intimated,  if  not  directly  held,  that 
certain  specific  matters  such  as  education  and  perhaps  also  health, 
which  are  to  be  regarded  as  matters  primarily  of  state  concern, 
may  be  regulated  by  freeholders'  charters  where  no  question  of 
conflict  with  state  laws  is  involved.  But  this  holding  has  not  been 
predicated  upon  the  broad  doctrine  indicated  in  the  Platt  case, 
nor  indeed  upon  any  plainly  expressed  doctrine.  On  the  other 
hand,  it  has  been  held  that  the  annexation  of  territory  may  not 
be  so  regulated.  Now  provisions  for  the  annexation  of  territory 
are  very  commonly  included  in  legislative  charters,  yet  here  is  a 
subject  which  the  courts  have  not  hesitated  to  exclude  from  free- 
holders' charters.  Such  exclusion  is  rested  upon  entirely  reason- 
able grounds ;  but  the  point  is  that  it  is  wholly  at  variance  with 
the  unqualified  doctrine  of  the  Platt  case. 

There  is  no  intention  here  to  register  any  criticism  against  the 
judgment  of  the  court  as  to  the  competence  of  a  home  rule  city 
to  make  provision  in  its  charter  for  the  public  ownership  of  utili- 
ties. The  criticism  is  directed  merely  at  the  exceedingly  lati- 
tudinarian  doctrine  upon  which  that  judgment  was  rested.  The 
somewhat  uncertain  distinction  between  municipal  and  non- 
municipal  affairs  was  not  of  the  court's  making.  It  was  written 
expressly  into  the  fundamental  law  of  the  state.  This  being  so, 
it  would  seem  that  the  court  might  with  more  propriety,  and 
certainly  with  more  safety,  have  held  that  the  right  to  frame  a 
charter  for  its  own  government  included  (1)  the  power  to  regulate 
all  " municipal  affairs"  as  that  term  might  be  judicially  defined, 
and  (2)  the  power  to  regulate  (in  the  absence  of  regulation  by  state 
law)  those  affairs  which,  although  regarded  in  many  branches  of 
the  law  of  municipal  corporations  as  of  state  concern,  are  neverthe- 
less commonly  and  doubtless  appropriately  regulated  by  charter 
laws.  Under  such  ruling  the  power  to  make  provision  in  a  free- 
holders' charter  for  municipal  ownership  of  utilities  could  have  been 
easily  sustained  either  as  a  strictly  municipal  affair  or  as  a  state 
affair  commonly  and  appropriately  controlled  by  municipal  charters. 


360     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  October,  1911  there  was  adopted  in  California  the  constitu- 
tional amendment  already  referred  to,  which  specifically  conferred 
upon  cities  the  power  to  impose  the  " conditions"  and  " regula- 
tions" under  which  all  local  utilities  might  be  established  and 
operated,  whereas  prior  to  that  time  "any  individual  or  any  com- 
pany" enjoyed  "the  privilege  of  using  the  public  streets"  for  the 
purpose  of  supplying  at  least  the  utilities  of  water  and  artificial 
light,  subject  only  to  the  "  direction  "  of  the  city  as  to  the  use  of 
the  streets  and  its  power  to  regulate  rates.  There  was  also  in- 
corporated into  this  amendment  the  following  provision :  * 

Any  municipal  corporation  may  establish  and  operate  public  works 
for  supplying  its  inhabitants  with  light,  water,  power,  heat,  transporta- 
tion, telephone  service  or  other  means  of  communication.  Such  works 
may  be  acquired  by  original  construction,  or  by  the  purchase  of  existing 
works,  including  their  franchises,  or  both.  ...  A  municipal  corporation 
may  furnish  such  services  to  inhabitants  outside  its  boundaries;  pro- 
vided that  it  shall  not  furnish  any  service  to  the  inhabitants  of  any  other 
municipality  owning  or  operating  works  supplying  the  same  service  to 
such  inhabitants,  without  the  consent  of  such  other  municipality,  expressed 
by  ordinance. 

It  is  difficult  to  understand  the  motives  which  prompted  the 
framing  of  this  provision.  The  Platt  case  had  established  that 
any  city  under  a  home  rule  charter  could  provide  for  the  owner- 
ship of  a  public  utility.  In  the  case  of  Fellows  v.  City  of  Los 
Angeles  2  the  competence  of  the  city  to  supply  a  public  utility  ser- 
vice to  persons  outside  its  boundaries  had  been  not  only  sustained 
but  also,  in  the  peculiar  circumstances  of  that  case,  positively 
compelled.  It  was  simply  a  fact  that  numerous  cities  of  the 
state  had  owned  waterworks  and  lighting  plants  for  many  years 
antecedent  to  the  adoption  of  this  amendment.  It  was  explained 
by  the  author  of  the  amendment,  State  Senator  Reed,  that  the 
necessity  arose  from  the  fact  that  whenever  any  city  attempted 
to  construct  a  utility  plant  that  would  compete  with  an  existing 
plant  privately  owned,  the  point  was  made  that  the  corporation 
owning  such  plant  was  being  deprived  of  its  property  without  due 

1  Art.  XI,  sec.  19.  2  Supra,  335. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    361 

process  of  law.1  Surely  the  senator's  notion  that  the  people  of 
California  could,  by  an  amendment  to  their  own  constitution, 
draw  the  fangs  of  a  guarantee  of  the  national  constitution  was 
somewhat  fantastic.2 

In  the  case  of  the  Matter  of  Russell 3  the  supreme  court  of 
California,  commenting  on  the  municipal  ownership  features  of 
the  1911  amendment,  said  that  "at  the  time  this  amendment  was 
adopted  municipal  corporations,  unless  specially  authorized  by 
charter,  were  without  power  to  make  or  operate  the  several  public 
utilities  mentioned."  But  "there  had  apparently  arisen  a  general 
opinion  among  the  people  that  municipal  ownership  and  operation 
of  such  utilities  was  [sic]  desirable."  The  effect  of  the  amendment 
was  plain.  It  "makes  to  all  municipal  corporations  a  direct  grant 
of  power  to  make  and  operate  public  works  of  the  kinds  enumer- 
ated." 

This  analysis  by  the  court  of  the  intent  of  this  part  of  the 
amendment  was  doubtless  dictum,  for,  as  has  been  seen,  the  case 
at  bar  involved  no  question  of  municipal  ownership  but  merely 
of  the  municipal  regulation  of  a  privately  owned  utility.  It  is 
nevertheless  interesting  and  illuminating.  In  the  light  of  its 
holding  in  the  Platt  case  the  court  was  evidently  seeking  some 
justification  for  an  amendment  which,  so  far  as  it  conferred  the 
power  to  own  utilities,  merely  wrote  in  express  terms  what  the 
court  had  declared  to  be  the  already  existing  law  of  the  constitution 
without  such  terms.  Naturally  the  unique  object  aimed  at  by 
the  author  of  the  amendment  did  not  occur  to  the  court.  It  would 
have  occurred  to  no  one  who  knew  even  a  smattering  of  the 
principles  of  our  constitutional  law.  The  court  concluded  that 
this  amendment  must  have  added  something  to  the  law  as  it  stood 

1  Transactions  of  the  Commonwealth  Club  of  California,  VI,  p.  397. 

2  It  may  be  remarked  that  in  the  case  of  Madera  Waterworks  v.  Madera,  228 
U.  S.  454  (1913),  it  was  held  by  the  U.  S.  Supreme  Court  that  a  public  service 
corporation  in  California  was  not  deprived  of  property  without  due  process  of  law 
by  a  city's  entry  into  competition  with  it.     This  ruling  might  well  have  been  ex- 
pected from  previous  decisions  of  the  court.     See  Knoxville  Water  Co.  v.  Knoxville, 
200  U.  S.  22  (1905)  ;  Vicksburg  v.  Vicksburg  Waterworks  Co.,  202  U.  S.  453  (1905) 

3 163  Cal.  668  (1912)  ;   supra,  352. 


362  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

under  the  Platt  case.  What  it  added  was  this  —  that  a  city  might 
own  and  operate  public  utilities  without  the  authorization  of  its 
charter.  This  was  not  declared  hi  so  many  words  but  it  was 
unmistakably  implied  by  the  language  used. 

It  will  be  observed  that  by  this  implication  the  court  has  opened 
the  door  for  the  entrance  of  the  same  difficulties  that  have  arisen 
out  of  the  direct  constitutional  grant  of  the  police  power.1  The 
power  to  "establish  and  operate "  public  utilities  is  conferred  upon 
"any  municipal  corporation."  For  this  purpose,  if  no  charter 
provision  is  necessary,  who  is  the  municipal  corporation?  Can 
the  council  "establish  and  operate"?  Can  the  council  create  a 
department  of  the  government  and  empower  this  department  to 
"establish  and  operate"?  Can  a  charter  provision  "affect"  this 
direct  grant  of  power  ?  (It  was  held  that  such  a  provision  could  not 
"affect"  the  direct  grant  of  the  police  power.)  May  the  charter 
prohibit  the  organ  of  the  government  which  may  ultimately  be 
held  to  be  the  municipal  corporation  for  this  purpose  from  estab- 
lishing and  operating  all  utilities  or  any  particular  utility  ?  These 
are  some  of  the  questions  which  the  California  courts  may  be 
called  upon  to  answer  if  the  clear  implication  of  the  Russell  case  is 
not  retracted.  On  the  whole  it  would  probably  be  safer  for  the 
court  to  declare  at  its  next  opportunity  that  the  municipal  owner- 
ship provision  of  the  1911  amendment  added  nothing  whatever 
to  the  law  as  it  stood  under  the  cases  adjudicated  prior  to  its  adop- 
tion and  that  it  was,  therefore,  utterly  superfluous. 

Two  other  cases  should  be  mentioned  briefly  in  conclusion.  In 
Clark  v.  Los  Angeles  2  it  was  held  that  the  city  was  competent  to 
supply  electricity  for  motive  power  as  well  as  for  light  and  heat. 
This  case  did  not  in  fact  turn  upon  any  construction  of  home  rule 
powers.  It  was  contended  that  the  furnishing  of  electric  current 
for  such  a  purpose  was  a  "private  business."  Why  the  city 
could  not  engage  in  a  private  business  was  not  clearly  asserted. 
The  court  merely  argued  that  the  business  in  question  was  "  a  pub- 
lic service  "  in  which  cities  may  engage.  Presumably  the  rule  of  law 
that  justified  the  argument  at  all,  although  it  was  not  specifically 

1  Supra,  322  fl.  2  150  Cal.  30.     1911. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    363 

mentioned,  was  the  rule  that  taxes  may  not  be  imposed  for  a  pri- 
vate purpose.  If  this  be  so,  it  is  manifest  that  the  question  would 
have  arisen  under  a  legislative  as  well  as  a  freeholders'  charter. 
The  case  may,  therefore,  be  set  aside  as  offering  no  point  of  in- 
terest in  connection  with  our  study. 

In  the  case  of  Egan  v.  San  Francisco l  the  court  decided  that  the 
city  could  not,  under  charter  authority  to  acquire  land  for  a  civic 
center  and  to  authorize  the  erection  by  a  private  company  of  "an 
opera  house,  museum,  or  other  structure,"  enter  into  a  contract 
with  the  Musical  Association  of  San  Francisco  by  which  the  asso- 
ciation was  to  construct  a  magnificent  opera  house  upon  ground 
furnished  by  the  city.  While  the  city  was  to  retain  the  naked 
legal  title  to  the  property,  the  " beneficial  attributes  of  ownership" 
were  to  pass  to  the  association  in  the  form  of  practically  complete 
control  in  perpetuity.  The  precise  ground  upon  which  the  power 
of  the  city  to  enter  into  this  contract  was  negatived  is  not  wholly 
free  from  uncertainty ; 2  but  whatever  it  may  have  been  it  did  not 
rest  upon  the  fact  that  the  charter  of  the  city  was  a  freeholders' 
charter.  Moreover,  it  was  clearly  intimated  that,  had  it  been 
necessary  to  decide  the  point,  the  court  would  have  declared  the 
ownership  and  operation  of  an  opera  house  to  be  a  function  appro- 
priately undertaken  by  a  city.  Of  course,  from  most  if  not  all 

1  165  Cal.  576.     1913. 

2  The  rule  of  no  taxation  for  a  private  purpose  was  not  mentioned,  although  this 
would  doubtless  have  been  the  most  apt  rule  to  apply  had  it  not  been  the  view  of  the 
court  that  "generally  speaking,  anything  calculated  to  promote  the  education,  the 
recreation,  or  the  pleasure  of  the  public  is  to  be  included  within  the  legislative 
domain  of  public  purposes."     One  of  the  principal  ideas  of  the  court  seems  to  have 
been  that  public  ownership  and  control  was  essential  where  a  public  purpose 
existed  —  an  idea  which,  it  may  be  remarked,  was  generally  repudiated  by  all  of 
the  numerous  cases  sustaining  railway  aid  legislation  and  specifically  by  some  of 
them.     See,  for  example,  Olcott  v.  The  Supervisors,  16  Wall.  678  (1872),  where  the 
point  is  directly  discussed  and  dismissed.     Another  somewhat  related  notion  of 
the  court  was  expressed  in  the  following  declaration:    "In  so  far  as  the  proposed 
use  is  public,  these  powers  necessarily  devolve  upon  some  officer  or  board  of  the 
municipality,  and,  under  the  well-settled  rule,  powers  of  this  character  cannot 
be  delegated."     This  "well-settled  rule"  was  obviously  not  the  rule  concerning 
the  delegation  of  legislative  powers;  but  "well-settled"  is  a  term  which  has  not 
infrequently  been  used  by  courts  to  conjure  conviction  out  of  doubt  and  un- 
certainty. 


364     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

points  of  view,  an  opera  house  cannot  be  regarded  as  a  public 
utility ;  but  since  in  one  state  at  least  an  enterprise  of  this  character 
has  been  crowded  under  the  term  utility,1  it  seems  proper  that  this 
case  should  be  adverted  to  in  this  connection. 


Has  a  City  the  Power  to  impose  Qualifications  for  Municipal 
Office  and  to  regulate  the  Removal  of  Municipal  Officer sf 

In  the  case  of  Sheehan  v.  Scott 2  the  somewhat  absurd  contention 
was  made  that  it  was  beyond  the  power  of  the  city  of  San  Francisco 
to  impose  in  its  freeholders'  charter  the  qualifications  for  the 
office  of  tax  collector.  The  case  is  of  interest  and  importance 
chiefly  because  of  the  broad  ground  upon  which  the  competence 
of  the  city  was  upheld.  The  opinion  recited : 

The  authority  to  provide  a  municipal  government  for  a  city  is  refer- 
able to  the  lawmaking  power  of  the  state,  and  the  enactment  of  a  charter 
for  a  municipality  is  a  legislative  act.  .  .  .  The  people  have  .  .  .  with- 
drawn from  the  senate  and  assembly  the  legislative  authority  of  the  state 
in  reference  to  municipal  government  for  cities,  to  the  extent  that  neither 
of  these  bodies  can  exercise  any  legislative  authority  in  the  enactment  of 
a  charter  for  such  a  municipality  until  after  its  provisions  have  been  for- 
mulated and  approved  by  the  city  itself  in  the  manner  prescribed  by 
section  8  aforesaid,  and  have  limited  their  legislative  authority  to  the 
mere  approval  or  rejection  of  the  charter  so  formulated.  The  authority 
thus  withdrawn  from  the  legislature  and  given  to  the  city  is  none  the  less 
a  part  of  the  lawmaking  power  of  the  state  because  it  is  contained  in  the 
article  upon  "Cities,  Counties,  and  Towns,"  rather  than  in  the  article  upon 
the  "Legislative  Department,"  and  the  act  of  the  city  in  formulating  the 
charter  and  determining  the  provisions  to  be  included  therein  has  the 
same  force  and  authority  as  would  a  charter  with  the  same  provisions 
enacted  by  a  legislature  that  was  not  restrained  by  any  constitutional 
limitations.  Its  adoption  by  the  city  and  approval  by  the  legislature  in 
the  manner  prescribed  by  said  section  is  the  mode  prescribed  by  the  con- 
stitution for  its  enactment  and  has  the  same  effect  as  that  of  a  law  which 
is  passed  by  bill,  under  the  provisions  of  section  15  of  Article  IV.  It 
must  be  held,  therefore,  that  the  provisions  of  the  charter  of  San  Fran- 
cisco in  reference  to  qualifications  for  eligibility  to  the  office  of  tax  col- 
lector have  been  established  by  the  legislative  authority  of  the  state  and  are 
valid. 

1  Infra,  567.  « 145  Cal.  684  (1905) ;   supra,  210. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA    365 

Here  again,  it  will  be  observed,  was  the  scope  of  the  powers  em- 
braced within  the  constitutional  grant  of  authority  to  frame  a 
charter  for  the  city's  government  determined  by  applying  the  test 
of  whether  the  legislature  could  have  exercised  the  power  in  dis- 
pute through  the  medium  of  a  legislative  charter.  The  danger 
that  inheres  in  such  a  liberal  test  has  already  been  pointed  out 
and  need  not  be  repeated.  Neither  need  it  be  noticed  that  the 
court  might  easily  have  been  contented  with  the  assertion  that  the 
regulation  of  the  qualifications  for  municipal  offices  was  a  matter 
strictly  within  the  domain  of  municipal  affairs. 

Attention  has  been  called  to  the  fact  that  in  the  case  of  Croly 
v.  City  of  Sacramento l  there  was  clearly  involved  a  question  of  con- 
flict between  a  charter  provision  and  a  state  law  relating  to  the 
matter  of  the  making  of  removals  from  office,  but  that  the  court 
nevertheless  decided  the  case  largely,  if  not  wholly,  upon  a  con- 
sideration of  the  power  of  the  city  to  incorporate  the  provisions 
in  question  into  its  charter.  The  charter  declared  that  for  certain 
specified  causes  a  city  officer  might  be  removed  and  "be  found 
disqualified  for  holding  any  position  in  the  service  of  the  city." 
As  to  the  power  of  the  city  to  control  the  matter  of  removals  from 
office,  the  court  declared  without  hesitation : 

It  cannot  be  questioned  that  the  appointment  of  a  superintendent  of 
streets  is  a  matter  purely  municipal,  and  which  [sic]  may  properly  be  left 
to  the  municipality  to  be  exercised  in  the  manner  provided  in  its  charter, 
and  it  would  seem  to  follow  as  a  logical  sequence  that  the  power  to  remove 
an  officer  so  appointed  is  equally  a  matter  of  purely  municipal  concern. 

On  the  point  concerning  the  competence  of  the  city  to  impose  a 
sentence  of  disqualification  from  holding  office  the  court  refused 
for  the  following  reasons  to  be  committed : 

Returning  from  these  general  considerations  to  the  charter  provision 
before  us,  it  is  to  be  observed  that  it  provides  two  separate  and  distinct 
penalties  for  official  delinquency  and  misconduct ;  the  one  removal  from 
office,  the  other  a  perpetual  disqualification  from  holding  any  other  posi- 
tion in  the  service  of  the  municipality.  The  foregoing  citations  and  quo- 
tations sufficiently  indicate  that  both  of  these  penalties  are  recognized 

1  119  Cal.  229  (1897) ;   supra,  313. 


366  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

as  incidents  to  the  corporate  existence  of  municipalities.  We  are  not, 
however,  called  upon  to  decide  in  this  proceeding  whether  the  second 
penalty  is  one  which  may  properly  be  imposed  under  the  charter,  or,  in 
other  words,  whether  the  penalty  of  perpetual  disqualification  and  the 
consequent  deprivation  of  an  important  right  of  amotion  is  but  the  exer- 
cise of  a  police  power  necessary  to  the  welfare  of  a  city.  So  much  of  the 
charter  provision,  therefore,  is  unquestionably  valid.  The  decision  upon 
this  point  is  determinative  of  this  appeal,  for  the  suit  is  in  prohibition  to 
restrain  the  board  of  trustees  from  acting  upon  the  theory  that  the  law 
as  a  whole  is  invalid  and  unconstitutional.  We  need  not  attempt  to 
anticipate  the  board's  decision,  and  it  is  sufficient  to  say  that,  if  it  should 
render  a  judgment  of  perpetual  disqualification  against  the  plaintiff  in 
this  proceeding,  it  will  be  time  enough  then  and  thereafter  to  pass  upon 
that  question. 

It  need  only  be  remarked  that,  although  the  court  was  mani- 
festly justified  in  refusing  to  decide  a  point  that  was  not  directly 
at  issue  in  the  case  at  bar,  yet  the  studious  care  with  which  this 
question  was  propped  open  for  the  future  seems  scarcely  justified  if 
the  doctrine  that  a  freeholders'  charter  may  contain  any  provision 
that  a  legislative  charter  might  embrace  was  a  doctrine  to  be  con- 
sistently applied.  There  could  be  no  question  that,  barring  some 
constitutional  limitation  in  point,  the  legislature  might  have  in- 
corporated sucb  a  provision  in  a  charter  of  its  own  framing. 
Why  then  this  cautious  utterance  ?  This  case  only  presents  addi- 
tional proof  of  the  truth  of  the  observation  already  made ;  to  wit, 
that  this  doctrine  has  not  been  applied  by  the  California  court 
witb  anything  like  uniform  consistency. 

Again  in  the  case  of  Coffey  v.  Superior  Court,1  while  the  court 
refused  to  determine  whether  the  regulation  of  the  manner  of 
making  removals  from  office  was  or  was  not  a  municipal  affair 
that  could  not  be  subjectedHo  the  control  of  a  general  law,  it  was 
nevertheless  in  no  wise  intimated  that  this  matter  was  not  within 
the  competence  of  a  city  to  regulate  by  charter  provision  in  the 
absence  of  a  governing  law.  The  point  was  simply  not  discussed. 

So  in  McKannay  v.  Horton2  the  court  avoided  determination  of  the 
question  whether  the  office  of  mayor  of  San  Francisco  had  become 
vacant  by  operation  of  the  law  or  the  charter,  which  were  in  accord 

1 147  Cal.  525  (1905) ;  supra,  314.  »  151  Cal.  711  (1907)  ;  supra,  315. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA     367 

upon  the  subject;  but  three  out  of  seven  judges,  in  a  separate 
concurring  opinion,  made  a  point  of  declaring  that  there  could  be 
"no  question  as  to  the  power  of  the  people  of  the  city  and  county 
of  San  Francisco  to  make  such  provisions  in  their  charter  as  to 
purely  municipal  offices." 

On  the  whole  it  must  be  concluded  that  the  power  of  the  city  in 
framing  its  own  charter  to  incorporate  provisions  regulating  the 
making  of  removals  from  office  was  clearly  recognized  in  California 
even  before  the  adoption  of  the  amendment  of  1906  l  which  ex- 
pressly declared  that  the  provisions  of  charters  should  control 
state  laws  upon  this  subject. 

Has  the  City  Power  to  incorporate  in  its  Charter  a  Provision 
for  Direct  Legislation  f 

It  seems  almost  absurd  to  propound  the  question  as  to  the  com- 
petence of  the  home  rule  city  to  provide  for  the  enactment  of 
municipal  ordinances  by  a  scheme  of  initiative  and  referendum. 
Reference  has  been  made  to  the  case  of  In  re  Pfahler,2  where  the 
contention  was  refuted  by  the  court  that  the  provision  for  such  a 
scheme  in  the  charter  of  Los  Angeles  was  in  conflict  with  state  law. 
No  further  reference  to  this  case  would  be  necessary  except  for  a 
single  passage  in  the  opinion  which  serves  to  illustrate  once  more 
the  very  unguarded  rule  that  has  been  laid  down  in  a  few  cases 
as  determining  the  competence  of  the  city  .that  frames  its  own 
charter.  Having  established  the  point  that  the  legislature  might 
have  provided  the  initiative  and  referendum  in  a  charter  of  its 
own  making,  the  court  declared  without  qualification : 

If  the  legislature  in  providing  by  general  statute  for  the  organization 
and  government  of  municipalities,  can  grant  such  power  to  the  people 
thereof,  there  can,  of  course,  be  no  question  that  such  power  may  be  vested 
in  the  people  of  a  city,  ratified  by  the  electors  thereof,  and  approved  by 
the  legislature,  under  section  eight  of  Article  XI  of  the  constitution. 

The  possibilities  of  danger  that  inhere  in  this  unrestricted  rule 
and  the  fact  that  it  has  not  been  consistently  applied  by  the 
California  courts  have  already  been  sufficiently  commented  upon. 

1  Art.  XX,  sec.  16  ;  supra,  316.  2  150  Cal.  71  (1906) ;  supra,  318. 


368  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  Effect  of  the  Amendment  of  1914  upon  the  Powers  of  Cities 

It  will  be  recalled  that  the  amendment  of  1914  to  section  six 
of  article  eleven  of  the  constitution  of  California  declared  that 
cities  were  expressly  "empowered  ...  to  make  and  enforce  all 
laws  and  regulations  in  respect  to  municipal  affairs,  subject  only 
to  the  restrictions  and  limitations  provided  in  their  several  char- 
ters, and  in  respect  to  other  matters,  they  shall  be  subject  to  and 
controlled  by  general  laws."  l  At  the  time  this  amendment  was 
adopted  no  alteration  was  made  in  section  eight  of  the  same 
article  which  conferred  power  upon  cities  to  "frame  charters  for 
their  own  government."  Had  these  two  provisions  stood  side  by 
side  in  the  original  constitution  of  1879  it  is  quite  possible  that 
the  courts  would  have  declared  that  the  city  in  framing  its  own 
charter  could  embody  provisions  relating  only  to  strictly  municipal 
affairs;  for  while  the  old  phraseology  of  the  now  famous  section 
six  declared  that  "cities"  and  "charters"  should  be  subject  to 
and  controlled  by  general  laws  except  in  municipal  affairs,  and 
while,  as  we  have  seen,  this  was  in  effect  interpreted  to  mean  only 
that  the  charters  should  be  subject  to  such  control,  thereby  per- 
mitting state  laws  to  be  applied  whenever  charter  provisions  were 
silent  upon  this  or  that  municipal  affair,  the  new  wording  omits 
the  word  "charters"  and  deals  only  with  "cities"  which  are 
empowered  to  control  municipal  affairs  but  are  "in  respect  to 
other  matters"  emphatically  declared  to  be  subject  to  state  laws. 
In  the  face  of  this  declaration  it  would  be  difficult  for  the  courts  to 
hold  without  a  wrench  upon  the  plain  meaning  of  terms  that  it  is 
only  "charters"  that  are  subject  to  such  control.  Indeed  the 
clause  clearly  implies,  to  the  extent  that  it  has  any  clarity  of  mean- 
ing, that  all  "affairs"  are  either  municipal  or  not  municipal,  and 
that  the  city  is  empowered  to  regulate  one  of  these  categories  but 
is  not  empowered  to  regulate  the  other  in  any  respect,  such  affairs 
being  subject  to  state  regulation  if  they  are  to  be  regulated  at  all. 

Now  as  we  have  seen,  the  California  court  under  the  former 
wording  of  the  constitutional  provisions  in  question  has  held  that 

i  Supra,  319. 


THE  SCOPE  OF  THE  CITY'S  POWER  IN  CALIFORNIA     369 

a  city  may  regulate,  through  the  medium  of  a  self-made  charter, 
certain  state  affairs  to  the  extent  that  such  affairs  are  not  regulated 
in  a  contrary  manner  by  state  laws;  and  hi  several  cases  the 
broad  rule  has  been  propounded  that  a  freeholders'  charter  may 
(barring  all  question  of  conflict)  deal  with  any  subject  that  a 
legislative  charter  might  embrace.  This  view  has  been  highly 
advantageous  to  the  cause  of  genuine  self-government,  but  it  is  a 
view  which  can  be  sustained  only  with  some  difficulty  under  the 
latest  revision  of  the  constitutional  phraseology.  There  would 
be  considerable  measure  of  justification  if  the  supreme  court  of 
the  state  should  administer  a  well-deserved  rebuke  to  the  ever 
busy  tinkerers  with  the  fundamental  law  upon  this  subject  by 
completely  abandoning  this  view  and  accepting  the  constitutional 
pronouncement  in  all  of  its  naked  literalness.  It  is  not  probable, 
however,  that  such  a  policy  will  be  adopted.  The  framers  of  the 
amendment  certainly  did  not  intend  to  narrow  the  existing  scope 
of  home  rule  powers,  and  the  court  will  doubtless  with  great 
patience  attempt  to  read  more  or  less  intelligibility  into  what 
they  have  written. 


CHAPTER  XI 

HOME  RULE    IN    CALIFORNIA  —  CERTAIN    SPECIFIC 

RIGHTS   CONFERRED   IN  ADDITION   TO   THE 

GENERAL  GRANT  OF  POWER  TO  FRAME 

A  CHARTER 

SEVERAL  of  the  provisions  of  the  California  constitution  of  1879 
which  related  to  specified  powers  of  cities  have  already  been 
mentioned  in  appropriate  connections.  Thus  reference  has  been 
made  to  special  constitutional  provisions  touching  upon  the  finan- 
cial powers  of  cities,1  the  exercise  of  the  police  power,2  the  control 
of  public  utilities,3  and  the  regulation  of  removals  from  office.4 
There  remains  to  be  discussed  a  section  of  the  constitution  which 
was  adopted  in  1896  at  the  same  time  that  the  ''municipal  affairs" 
amendment  was  ratified.5  This  section  read  as  follows  : 

It  shall  be  competent,  in  all  charters  framed  under  the  authority  given 
by  section  eight  of  article  eleven  of  this  Constitution  to  provide,  in 
addition  to  those  provisions  allowable  by  this  Constitution  and  by  the 
laws  of  the  State,  as  follows : 

1.  For  the  constitution,  regulation,  government,  and  jurisdiction  of 
j2otioe_opurts,  and  for  the  manner  in  which,  the  times  at  which,  and  the 
terms  for  which  the  judges  of  such  courts  shall  be  elected  or  appointed, 
and  for  the  compensation  of  said  judges  and  of  their  clerks  and  attaches. 

2.  For  the  manner  in  which,  the  times  at  which,  and  the  terms  for 
which  the  members  of  boards  of  education  shall  be  elected  or  appointed, 
and  the  number  which  shall  constitute  any  one  of  such  boards. 

1  Such  as  the  provision  relating  to  the  deposit  of  municipal  funds  in  banks  (Art. 
XI,  sec.  16J  ;  supra,  211) ;  the  requirement  of  a  referendum  on  incurring  debta 
(Art.  XI,  sec.  18;  supra,  282) ;  the  amendment  of  1910  for  a  separation  of  state 
and  local  sources  of  revenue  (Art.  XIII,  sec.  14;  supra,  280). 

1  Art.  XI,  sec.  11 ;  supra,  323. 

»  Art.  XI,  sec.  19 ;  supra,  345,  351,  360 ;  Art.  XII,  sees.  2,  3  ;  supra,  354. 

«  Art.  XX,  sec.  16 ;  supra,  316.  •  Art.  XI,  sec.  8}. 

370 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     371 

3.  For  the  manner  in  which,  the  times  at  which,  and  the  terms  for 
which  the  members  of  the  bgardgjjf  poline  com  mission  prs  shall  be  elected 
or  appointed;    and  for  the  constitution,  regulation,  compensation,  and 
government  of  such  boards  and  of  the  municipal  police  force. 

4.  For  the  manner  in  which,  the  times  at  which,  and  the  terms  for 
which  the  members  of  all  boards  of  election  shall  be  elected  or  appointed, 
and  for  the  constitution,  regulation,  compensation,  and  government  of 
such  boards,  and  of  their  clerks  and  attache's ;   and  for  all  expenses  inci- 
dent to  the  holding  of  any  election. 

Where  a  city  and  county  government  has  been  merged  or  consolidated 
into  one  municipal  government,  it  shall  also  be  competent  in  any  char- 
ter framed  under  said  section  eight  of  said  article  eleven,  to  provide  for 
the  manner  in  which,  the  times  at  which,  and  the  terms  for  which,  the 
several  county  officers  shall  be  elected  or  appointed,  for  their  compensa- 
tion, and  for  the  number  of  deputies  that  each  shall  have,  and  for  the 
compensation  payable  to  each  of  such  deputies. 

In  the  light  of  our  previous  study  it  is  manifest  that  the  writing 
of  certain  clauses  of  this  amendment  was  directly  prompted  by  cases 
which  had  been  adjudicated  prior  to  1896  and  by  the  assumption 
or  fear  that  the  specific  powers  here  conferred  would  not  be  re- 
garded by  the  courts  as  falling  in  the  general  category  of  municipal 
affairs.  The  object  of  the  clause  relating  to  police  courts  was  to 
overcome  the  decisions  of  the  court  in  the  series  of  cases  upon  this 
subject  which  we  have  noted  l  and  especially  perhaps  the  decision 
of  People  v.  Toal.  The  clause  relating  to  education  was  doubtless 
written  because  in  the  case  of  Kennedy  v.  Miller  2  the  court  had, 
though  apparently  without  necessity,  strongly  intimated  that  the 
entire  control  of  education  was  a  matter  of  state  concern.  No 
case  had  been  decided  involving  police  departments ;  but  at  the 
time  of  this  amendment  the  police  department  of  San  Francisco 
was  under  the  control  of  a  state-appointed  commission,3  and  those 
who  drafted  this  section  evidently  looked  forward  to  the  possibil- 
ity of  the  contention  being  made  that  the  city  could  not  abolish 
this  commission  through  the  medium  of  a  freeholders'  charter. 
Although  the  case  of  Staude  v.  Election  Commissioners 4  had  not 
been  decided  on  the  ground  that  the  regulation  of  municipal 

1  Supra.,  241-245.  2  Supra,  246,  295,  303. 

3  Established  in  1883.  4  Supra,  234,  248. 


372  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

elections  was  a  state  affair,  this  point  being  unnecessary  before 
1896,  yet  the  opinion  contained  certain  expressions  that  apparently 
raised  doubts  as  to  what  might  be  the  holding  of  the  court  upon 
this  point ;  and  the  insertion  of  the  clause  upon  this  subject  was 
probably  inspired  by  these  doubts.  Kahn  v.  Sutro,1  the  election 
case  in  which  the  court  elaborately  divided  the  several  officers  of 
the  consolidated  government  of  San  Francisco  into  "city  officers" 
and  "county  officers,"  had  probably  not  been  decided  when  this 
section  was  drafted,  although  it  had  doubtless  reached  the  supreme 
court.  It  is  certainly  possible  that  the  point  which  it  raised  led  to 
the  writing  of  the  last  paragraph  of  the  section,  applicable  only  to 
consolidated  cities  and  counties. 

It  was  in  this  wise,  at  any  rate,  that  the  people  of  California 
sought  to  confirm  to  their  home  rule  cities  certain  specific  powers 
which  might  otherwise  have  been  excluded  by  the  courts  from  the 
category  of  municipal  affairs. 

Were  the  Provisions  of  Section  5J  retrospective  ? 

The  case  of  Ex  parte  Sparks,2  already  discussed  above,3  was 
decided  after  this  amendment  went  into  effect ;  but  it  involved 
the  validity  of  a  police  court  established  by  a  charter  which  was 
ratified  before  the  adoption  of  the  amendment.  One  of  the  con- 
tentions made  in  that  case  was  that  section  8J  operated  to  give 
validity  to  the  provisions  of  the  charter  upon  this  subject  even 
though  they  had  been  invalid  prior  to  its  adoption.  But  like  the 
ruling  laid  down  in  the  Banaz  case  4  in  respect  to  the  retroactive 
effect  of  the  "municipal  affairs"  amendment,  it  was  held  that  the 
power  conferred  upon  cities  in  the  matter  of  police  courts  was 
prospective  only  and  did  not  give  life  to  charter  provisions  that 
were  void  from  the  beginning.6  This  interpretation  of  the  lan- 
guage that  was  employed  was  certainly  not  unreasonable.6 

i  Supra,  248.  2  120  Cal.  395.     1898.  3  Supra,  207.  «  Supra,  272. 

6  Reaffirmed  in  Fleming  v.  Hance,  153  Cal.  162  (1908)  ;  supra,  257;  infra,  383. 

*  It  is  to  be  remarked  that  this  ruling  as  applied  to  section  8|  stood  upon  a  wholly 
different  footing  from  the  doctrine  of  the  Banaz  case,  which,  as  has  been  noted 
(supra,  273),  was  without  doubt  open  to  question  in  the  light  of  the  decision  of  the 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     373 

What  Powers  might  the  City  exercise  over  the  Jurisdiction  of  Police 

Courts  ? 

In  the  year  1900  there  was  decided  the  first  of  a  series  of  inter- 
esting cases  involving  the  question  of  the  relation  between  charter 
provisions  governing  the  jurisdiction  of  police  courts  and  state  laws 
fixing  the  jurisdiction  of  general  courts.  This  was  the  case  of  Ex 
Parte  Dolan.1  The  freeholders'  charter  of  Santa  Barbara  (1900) 
established  a  police  court  and  conferred  upon  it  "exclusive  juris- 
diction" over  certain  offenses  —  among  others  the  misdemeanor 
committed  by  Dolan,  the  petitioner  in  the  case  for  a  writ  of  habeas 
corpus.  Dolan  was  convicted  before  a  township  justice  of  the 
peace  and  his  contention  was  that  this  justice  was,  by  reason  of  the 
charter  provision,  incompetent  to  try  and  convict  him.  Upon 
this  point,  the  view  of  the  court  is  clearly  set  forth  in  the  following 
excerpt : 

By  virtue  of  section  83,  article  XI,  of  the  constitution,  it  is  competent 
for  a  freeholders'  charter  to  provide  "for  the  constitution,  regulation, 
government,  and  jurisdiction  of  police  courts."  And  it  was  under  the 
authority  found  in  this  provision  of  the  constitution  that  the  police  court 
of  the  city  of  Santa  Barbara  was  created  by  its  charter  and  jurisdiction 
given  it  as  heretofore  stated.  We  attach  no  importance  to  the  adjective 
"exclusive"  preceding  the  word  "jurisdiction"  found  in  the  charter  pro- 
vision. The  constitutional  provision  furnishes  the  measure  of  the  power 
given  to  the  framers  of  the  charter,  and  unless  authority  is  granted  by 
that  instrument  to  declare  that  exclusive  jurisdiction  in  the  class  of  cases 
here  involved  may  be  given  to  police  courts,  the  word  has  no  place  in  the 
charter.  We  must  take  the  constitutional  provision  as  it  stands,  and  by 
that  provision  it  is  only  said  the  jurisdiction  of  the  police  court  may  be 
fixed  by  charter.  Under  the  power  given  by  the  constitutional  provision 

Byrne  case.  The  language  of  the  two  amendments  was  quite  dissimilar.  Under 
section  6,  municipal  charters  were  not  to  be  "subject  to  and  controlled  by  general 
laws"  in  "municipal  affairs."  It  would  not  have  been  unreasonable  to  hold 
that  this  amendment  operated  to  relieve  all  existing  charter  provisions  from  the 
"control"  of  general  laws  relating  to  municipal  affairs.  But  section  8J  merely 
declared  that  "it  shall  be  competent"  for  freeholders'  charters  to  provide  for 
certain  things.  There  was  nothing  whatever  to  indicate  that  the  amendment 
had  any  retrospective  operation. 
1  128  Cal.  460.  1900. 


374     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  charter  may  fix  the  jurisdiction  of  the  police  courts,  but  no  authority 
is  conferred  upon  the  charter  by  the  constitutional  provision  whereby  it 
may  oust  any  other  court  of  jurisdiction  it  already  had. 

It  may  be  stated  that  in  criminal  cases  the  jurisdiction  of  justices' 
courts  is  not  fixed  by  the  constitution,  but  is  a  matter  left  solely  to  the 
legislature.  We  then  have  a  direct  grant  of  jurisdiction  to  justices'  courts 
by  the  legislature  in  cases  of  simple  misdemeanor  such  as  that  here  in- 
volved. We  also  have,  by  virtue  of  the  constitutional  provision  hereto- 
fore quoted,  a  direct  grant  through  the  medium  of  the  freeholders'  charter 
to  police  courts  of  the  same  character  of  criminal  jurisdiction  as  that 
granted  by  the  legislature  to  justices'  courts.  In  other  words,  we  have 
the  same  character  of  criminal  jurisdiction  vested  in  a  police  court  and  a 
justice's  court,  and  we  see  no  reason,  upon  any  principle  of  statutory  con- 
struction, why  the  latter  grant  of  jurisdiction  to  the  police  court  should 
result  in  a  repeal  of  the  general  law  vesting  the  same  jurisdiction  in  the 
justice's  court. 

Although  it  was  not  specifically  so  declared,  here  was  an  unmis- 
takable instance  of  conflict  between  state  law  and  charter  pro- 
vision. The  law  conferred  jurisdiction  over  the  offense  in  question 
upon  justices  of  the  peace.  The  charter  conferred  exclusive 
jurisdiction  over  the  same  offense  upon  the  police  court.  Apply- 
ing a  rule  of  strict  construction  to  the  grant  of  power  over  police 
courts,  the  court  simply  read  the  word  "exclusive"  out  of  the 
charter  and  sustained  the  validity  of  state  law. 

The  case  of  Elder  v.  McDougald,1  decided  five  years  after  the 
Dolan  case,  involved  a  question  which  was  similar  in  one  aspect 
to  that  which  was  raised  in  the  Dolan  case.  The  freeholders' 
charter  of  San  Francisco  provided  for  the  appointment  of  two 
regular  stenographers  for  the  police  court  with  annual  salaries. 
The  general  laws  of  California  imposed  certain  duties  upon  the 
judges  of  municipal  police  courts,  especially  duties  as  committing 
magistrates  in  the  conduct  of  preliminary  hearings  in  felony  cases. 
In  connection  with  these  duties  such  judges  were  authorized  to 
appoint  stenographers  to  make  reports  of  these  hearings,  and  the 
cities  of  the  state  were  ordered  to  compensate  these  stenographers. 
A  police  judge  of  San  Francisco  made  an  appointment  of  this 
character,  as  authorized  by  law,  and  his  appointee  sought  a  writ  of 

1  145  Cal.  740.     1905. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     375 

mandamus  to  compel  the  treasurer  of  the  city  to  pay  him  his 
compensation.  The  court  sustained  the  treasurer  in  his  refusal  to 
do  so.  The  opinion  recited  : 

While  it  is  contended  in  this  appeal  that  it  was  not  competent  under 
this  constitutional  grant  of  power  for  the  charter  framers  to  invest  such 
police  courts  with  jurisdiction  to  enforce  the  general  laws  of  the  state  to 
the  extent  of  holding  preliminary  examinations,  we  do  not  feel  called  on 
to  determine  that  question.  It  is  not  at  all  involved  in  the  present  inquiry. 

After  discussing  a  number  of  hair-splitting  points  that  were 
raised,  the  principal  contention  at  issue  was  disposed  of  as  follows : 

We  are  of  the  opinion,  therefore,  that,  under  section  85  of  article  XI 
of  the  constitution,  it  was  competent  for  the  framers  of  the  charter  of  the 
city  and  county  of  San  Francisco  to  provide  for  the  appointment  and 
compensation  of  the  attaches  of  the  judges  of  the  police  court  authorized 
to  be  created  thereunder,  and  that  stenographic  reporters  come  within  the 
category  of  attaches ;  and  that  it  is  of  no  moment  that  in  conducting  pre- 
liminary examinations  the  judge  of  said  court  acquires  jurisdiction  to  do 
so  as  a  magistrate  under  general  law.  The  purpose  was  to  authorize 
them  to  provide  for  the  appointment  and  compensation  of  all  attaches 
to  the  judges  of  such  court,  no  matter  whether  such  attaches  were  neces- 
sary to  a  proper  discharge  of  the  duties  of  said  judges  under  the  provisions 
of  the  charter  or  under  the  requirements  of  the  general  law ;  the  charter 
provision  operated  upon  them  as  to  their  attaches  by  virtue  of  their 
existence  as  judges  of  the  police  court,  created  under  the  charter.  .  .  . 

The  provisions  of  the  charter  in  that  respect  superseded  section  869  of 
the  Penal  Code  as  far  as  it  empowered  a  police  magistrate  of  a  city  to 
appoint  a  reporter  for  a  preliminary  examination  being  held  by  him  and 
to  fix  his  compensation,  because  under  section  8  of  the  constitution  it  is 
declared  that  the  provisions  of  a  charter  authorized  by  that  constitution 
shall  supersede  all  laws  inconsistent  with  it. 

The  opportunity  which  the  court  embraced  in  this  case  to  avoid 
all  determination  of  whether  a  freeholders'  charter  could  invest  a 
police  court,  over  which  it  was  given  such  large  control  by  the 
constitutional  amendment  under  consideration,  with  jurisdiction 
as  to  the  enforcement  of  state  laws  was  not  open  to  the  court  in 
Robert  v.  Police  Court  of  San  Francisco.1  The  amendment  specifi- 
cally declared,  without  qualification  or  reservation,  that  such 

i  148  Cal.  131.     1905. 


376     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

charters  might  make  provision  for  the  " jurisdiction"  of  police 
courts.  The  framers  of  the  charter  of  San  Francisco,  acting  up  to 
the  letter  of  this  grant  of  power,  provided  that  the  police  court  of 
the  city  and  county  should  have  "  concurrent  jurisdiction  with  the 
superior  court"  over  misdemeanor  cases  arising  under  the  general 
laws  of  the  state.  In  declaring  this  to  be  beyond  the  power  of  a 
freeholders'  charter  the  court  fell  back  upon  another  provision  of 
the  constitution,  which  declared  that  the  "  superior  court  shall 
have  original  jurisdiction  in  ...  cases  of  misdemeanor  not  other- 
wise provided  for."  l  Reading  into  this  provision  of  the  consti- 
tution the  important  word  " exclusive"  —  a  word  by  which  the 
court  had  in  the  Dolan  case  expressly  declined  to  qualify  the  term 
"jurisdiction"  as  used  in  the  clause  of  section  8J  relating  to  police 
courts  —  the  court  declared  that,  since  the  superior  court  "must 
possess  original  jurisdiction  in  the  absence  of  any  transfer  of  juris- 
diction to  an  inferior  court,  and  loses  its  jurisdiction  entirely  by 
the  transfer,  it  is  clear  that  it  cannot  have  concurrent  jurisdiction 
with  any  other  court  in  any  case  of  misdemeanor.2  Hence  it 
follows  .  .  .  that  the  attempt  of  the  freeholders'  charter  to  confer 
concurrent  jurisdiction  is  one  to  which  legal  effect  cannot  be 
given." 

There  seems  to  be  little  question  that  the  construction  placed 
by  the  court  upon  the  clause  of  the  constitution  relating  to  the 
jurisdiction  of  the  superior  courts  was  somewhat  highly  strained. 
The  vesting  of  concurrent  jurisdiction  in  two  or  more  courts  is  a 
fairly  common  practice  of  our  law-makers.3  There  was  nothing 
in  the  provision  of  the  constitution  referred  to  which  specifically 
or  by  clear  implication  prohibited  such  a  disposition  of  the  juris- 

1  Art.  VI,  sec.  5. 

«  The  case  of  Green  v.  Superior  Court  of  San  Francisco,  78  Cal.  556  (1889),  was 
cited  in  support  of  this  construction.  It  had  been  held  in  this  case  that  where  the 
legislature  had  by  amendment  of  the  "consolidation  act"  vested  in  the  San  Fran- 
cisco police  court  jurisdiction  over  misdemeanors,  such  jurisdiction  passed  entirely 
from  the  superior  court.  The  case  did  not  clearly  hold  that  the  legislature  could 
not  have  made  the  jurisdiction  concurrent  but  rather  that  it  had  not  done  so. 

1  For  the  recognition  of  this  fact  by  the  California  court  see  Coffey  ».  Superior 
Court,  147  Cal.  525 ;  supra,  314.  The  Coffey  case  and  the  Robert  case  were  de- 
cided at  the  same  term  of  court. 


SPECIFIC  POWERS  CONFERRED  IN   CALIFORNIA     377 

diction  as  to  misdemeanor  cases.  The  logic  of  the  court  would 
perhaps  have  been  easier  to  follow  had  it  been  frankly  declared 
that  the  jurisdiction  which  might  be  regulated  by  a  freeholders' 
charter  was  jurisdiction  as  to  the  enforcement  of  municipal  ordi- 
nances and  charter  provisions.  It  is  true  that  the  constitution 
placed  no  limit  upon  the  " jurisdiction"  which  a  freeholders' 
charter  might  "  provide  for."  But  it  might  have  been  argued 
with  some  force  that  the  framers  of  the  amendment  could  not  have 
intended  to  vest  in  the  several  municipalities  of  the  state  the 
authority  to  regulate  the  jurisdiction  of  local  courts  to  the  extent 
of  determining  their  power  to  hear  causes  arising  under  state  laws. 
This  was  precisely  the  view  of  two  members  of  the  court  (Beatty, 
C.  J.,  and  Henshaw,  J.)  who  concurred  in  the  judgment  of  invalid- 
ity on  the  added  ground  that  "the  jurisdiction  of  offenses  denned 
by  state  law  must  be  regulated  by  general  state  law,"  that 
"such  regulations  cannot  be  altered  or  qualified  by  any  provision 
of  a  freeholders'  charter,"  and  that  "the  trial  and  punishment 
of  offenses  defined  by  the  laws  of  the  state  is  not  a  municipal 
affair." 

It  is  to  be  remarked  that  in  neither  the  Dolan,  the  Elder,  nor  the 
Robert  case  was  the  question  specifically  involved  as  to  whether  a 
freeholders'  charter  in  making  provision  for  the  jurisdiction  of 
police  courts  might  prohibit  the  exercise  by  such  courts  of  any 
jurisdiction  in  the  matter  of  enforcing  state  laws.  In  the  Dolan 
case  the  charter  expressly  conferred  power  over  an  offense  arising 
under  state  law.  In  the  Elder  case  the  charter  did  not  attempt  to 
prohibit  police  judges  from  acting  as  committing  magistrates ;  and 
although  it  was  declared  in  the  course  of  the  opinion  that  the 
amendment  conferring  upon  cities  certain  powers  in  respect  to 
their  police  courts  "had  in  view  also  the  fact  that  (especially  in  a 
merged  and  consolidated  municipal  government,  like  that  of  the 
city  and  county  of  San  Francisco)  a  large  jurisdiction  might  be 
exercised  by  the  judges  of  such  courts  under  the  general  law," 
this  expression  of  opinion  was  not  pertinent  to  the  decision  of  the 
issue  at  bar.  In  the  Robert  case  there  was  no  question  whatever 
of  an  attempted  exclusion  by  charter  provision  of  jurisdiction 


378  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

conferred  by  state  law.  The  fact  is  that  the  California  court  has 
never  been  called  upon  to  rule  specifically  upon  this  point.  It 
would  seem,  however,  that  it  would  not  be  an  unreasonable  inter- 
pretation of  the  amendment  of  1896  to  hold  that  while  a  city  might 
not  under  a  freeholders'  charter  confer  jurisdiction  upon  its  police 
court  as  to  the  enforcement  of  state  laws,  neither  might  the  state 
confer  such  jurisdiction  against  a  mandate  to  the  contrary  in  the 
municipal  charter.  In  other  words,  it  might  be  held  that  the 
i-  city's  power  as  to  jurisdiction  was  absolute  so  long  as  no  at- 
tempt was  made  to  withdraw  any  portion  of  the  jurisdiction  of 
those  courts  which  constitute  the  regular  judicial  system  of  the 
state. 

In  Graham  v.  Fresno  l  the  provision  of  the  amendment  relating 
to  police  courts  was  again  brought  up  for  construction.  The 
freeholders'  charter  of  Fresno  established  a  police  court  in  1901. 
Section  103  of  the  Code  of  Civil  Procedure  provided  that  in  every 
city  or  town  of  the  third  or  fourth  class  there  should  be  a  jus- 
tice of  the  peace.  The  charter  conferred  upon  the  police  court 
jurisdiction  over  violations  of  municipal  ordinances  and  also 
"concurrent  jurisdiction  with  township  justices'  courts  in  all 
matters  wherein  said  justices'  courts  may  have  jurisdiction." 
The  code  provided  that  a  justice  of  the  peace  in  a  city  of  the 
designated  classes  should  have  civil  and  criminal  jurisdiction  "as 
justices  of  the  peace  of  townships"  and  also  over  violations  of 
municipal  ordinances.  It  was  further  provided  that  he  should 
be  paid  $1500  out  of  the  salary  fund  of  the  city  or  town  and  should 
be  furnished  with  a  suitable  office  by  the  municipality.  Graham 
was  elected  "city  justice  of  the  city  of  Fresno"  at  the  general  elec- 
tion held  on  November  6,  1906.  He  applied  for  a  mandamus  to 
compel  the  municipal  authorities  to  furnish  him  with  a  suitable 
office. 

The  only  point  directly  involved  in  the  case  was  whether  the 
city  could  be  compelled  to  furnish  an  office  for  the  justice  of  the 
peace.  Before  the  adoption  of  the  amendment  of  1896  there  is 
no  question  that  mandamus  would  have  issued  to  compel  the  city 

i  151  Cal.  465.     1907. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     379 

in  this  regard.1     As  to  the  effect  which  that  amendment  had  upon 
the  situation  the  court  said : 

We  cannot  find  in  subdivision  1  of  section  8£  any  intention  to  inter- 
fere with  the  power  of  the  legislature  in  the  matter  of  provision  for  justices 
of  the  peace  for  cities  and  towns.  That  subdivision  is  limited  in  terms  to 
"police  courts,"  and  there  is  no  mention  whatever  therein  of  justices  of 
the  peace  or  justices'  courts.  The  term  "police  court"  ordinarily  refers 
to  an  inferior  municipal  court  with  a  limited  jurisdiction  in  criminal 
cases  only,  a  court  with  the  power  to  try  certain  misdemeanor  cases  aris- 
ing from  the  violation  of  state  law  or  municipal  ordinance,  and  with  the 
power  to  conduct  preliminary  examinations  in  cases  of  felony  and  certain 
misdemeanors,  and  to  hold  defendants  to  answer  for  trial  for  same,  and 
does  not  include  the  justices'  courts  established  by  our  law.  The  term 
should  probably  also  be  construed  to  include  such  inferior  courts  as  may 
properly  be  held  to  be  purely  municipal,  though  given  by  the  state  cer- 
tain jurisdiction  in  state  as  distinguished  from  municipal  matters,  courts 
coming  within  the  class  specified  in  the  constitution  as  "such  inferior 
courts  as  the  legislature  may  establish  in  any  incorporated  city  or  town 
or  city  and  county,"  such  as  a  city  recorder's  court  or  a  mayor's  court. 
(See  Ex  parte  Soto,  88  Cal.  624,  626.)  But  the  city  justice  of  the  peace 
provided  for  by  section  103  of  the  Code  of  Civil  Procedure  does  not  come 
within  this  category.  (People  v.  Sands,  102  Cal.  12 ;  People  v.  Cobb,  133 
Cal.  74.)  Justices  of  the  peace  are  part  of  the  constitutional  judicial 
system  of  the  state,  having  concurrent  jurisdiction  with  superior  courts 
in  certain  matters  expressly  given  by  the  constitution  (article  VI,  sec.  11), 
and  also  having  such  jurisdiction  in  civil  and  criminal  cases  as  is  given 
by  the  general  laws  of  the  state  to  all  justices  of  the  peace.  In  this  regard 
there  is  no  distinction  whatever  between  township  and  city  justices. 
(See  cases  last  cited.)  A  city  justice  is  simply  a  part  of  the  general  state 
system,  elected  by  a  certain  subdivision  thereof.  It  is  immaterial  in  this 

mnection  that  the  legislature  has  attempted  to  confer  upon  city  justices 
additional  jurisdiction  in  matters  peculiar  to  the  city,  such  as  cases 

rising  under  violations  of  municipal  ordinances,  etc. 
It  does  not  follow,  however,  that  the  provisions  of  section  103  of  the 

'ode  of  Civil  Procedure,  as  to  the  payment  of  the  salary  of  such  a  city 

istice  from  the  municipal  treasury  and  the  furnishing  to  him  of  an  office 
>y  the  municipality  will  be  held  valid  as  to  a  city  having  a  police  court 
)lished  under  a  valid  charter  provision.  .  .  .     The  city  justice  of  the 

1  Bishop  v.  Council  of  Oakland,  58  Cal.  572  (1881) ;  Jenks  v.  Council  of  Oakland, 
Cal.  576  (1881) ;   Coggins  v.  City  of  Sacramento,  59  Cal.  599  (1881) ;  People  ex 
Wood  v.  Sands,  102  Cal.  12  (1894) ;   People  ex  rel.  Richardson  v.  Cobb,  133 
I.  74  (1901). 


380  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

peace  established  by  the  legislature  has  always  been  given,  in  addition  to 
the  ordinary  jurisdiction  of  a  justice's  court,  the  power  and  jurisdiction  of 
an  ordinary  police  court  of  a  city,  the  expense  of  the  maintenance  of 
which  has  always  been  considered  a  proper  charge  upon  the  city,  and  his 
office  thus  partook  of  the  character  of  both  a  county  and  township  and  a 
city  office. 

The  effect  of  subdivision  1  of  section  8|  of  article  XI  was  to  make  the 
matter  of  such  police  courts  purely  a  municipal  affair  as  to  any  freeholders' 
charter  city  which  subsequently  made  appropriate  provision  in  its  char- 
ter for  such  court.  .  .  . 

For  a  city  maintaining  a  police  court  under  valid  provisions  in  that 
behalf  in  its  freeholders'  charter,  the  legislature  therefore  no  longer  has 
the  power  to  provide  such  a  court.  While  it  still  has  the  power  to  provide 
a  justice's  court  for  any  such  city  as  a  part  of  the  general  state  system  of 
justices'  courts,  it  no  longer  has  the  power  to  make  such  a  court  also  a 
police  court,  maintainable  at  the  expense  of  the  city.  This  would  be,  in 
effect,  the  same  thing  as  providing  a  separate  police  court  for  the  city, 
to  be  maintained  at  the  expense  of  the  city.  ...  As  to  such  cities,  the 
city  justice  of  the  peace  provided  by  section  103  of  the  Code  of  Civil 
Procedure  must  be  held  to  be  the  same  in  all  respects  as  a  township  jus- 
tice, simply  a  county  or  township  officer  performing  no  municipal  function 
whatever. 

The  legislature  is  not  empowered  to  direct  the  appropriation  of  munici- 
pal funds  for  the  payment  of  the  salary  or  office  expenses  of  one  who  is 
simply  a  county  or  township  officer.  Municipal  funds  can  be  appropriated 
under  our  system  only  for  municipal  purposes.  (Conlin  v.  Board  of  Super- 
visors, 114  Cal.  404.)  The  only  ground  upon  which  the  decisions  hereto- 
fore cited  upholding  the  provision  for  the  payment  of  salary  and  office 
expenses  of  city  justices  by  municipalities  can  be  sustained  is  that  such 
justices,  under  the  law  then  in  force,  in  addition  to  being  justices  of  the 
peace  with  the  same  jurisdiction  as  township  justices,  were  also  city  police 
judges,  performing  municipal  functions.  (See  People  v.  Sands,  102  Cal. 
12;  People  v.  Cobb,  133  Cal.  74.)  As  we  have  seen,  such  is  no  longer 
the  situation  in  a  city  having  a  police  court  established  under  the  valid 
provisions  therefor  in  its  freeholders'  charter. 

Two  points  of  considerable  importance  may  be  noted  in  connec- 
tion with  the  opinion  handed  down  in  this  case.  In  the  first  place, 
the  court  made  no  mention  of  the  fact  that  the  charter  of  Fresno 
had  vested  in  the  municipal  police  court  "  concurrent  jurisdiction 
with  township  justices'  courts  in  all  matters  wherein  said  justices' 
courts  may  have  jurisdiction."  Whether  it  was  competent  in  a 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     381 


freeholders'  charter  to  make  such  an  investiture  of  jurisdiction  was 
not  involved  in  the  case.  The  decision,  therefore,  added  nothing 
to,  and  took  nothing  from,  the  rule  laid  down  in  the  Robert  case 
as  to  the  incompetence  of  the  makers  of  a  freeholders'  charter  to 
vest  a  charter  police  court  with  jurisdiction  concurrent  with  that 
of  the  "superior"  courts  of  the  state. 

In  the  second  place,  the  opinion  apparently  did  determine,  if 
the  common  definition  of  words  is  to  be  given  to  the  language  em- 
ployed, that  the  legislature  had  no  power  to  vest  in  any  other 
court  concurrent  jurisdiction  with  a  police  court  established  by  a 
freeholders'  charter  over  violations  of  municipal  ordinances  and 
similar  municipal  matters.  It  is  true  that  Judge  Shaw,  who  read 
a  concurring  opinion,  made  it  clear  that  he  did  not  regard  the 
opinion  as  sustaining  the  view  that  "when  a  freeholders'  charter 
has  created  a  police  court,  and  vested  in  it  jurisdiction  over  offenses 
against  city  ordinances  and  suits  to  collect  city  license  taxes,  or 
any  other  jurisdiction  that  could  be  vested  in  such  police  court, 
such  provisions  of  the  charter  would  have  the  effect  of  preventing 
the  legislature  from  vesting  the  same  jurisdiction  in  a  justice's 
court  created  by  general  laws,  ...  or  that  such  charter  provisions 
would  at  all  affect  the  jurisdiction  of  any  such  justice's  court, 
whether  theretofore  or  thereafter  established."  With  due  respect, 
however,  it  is  difficult  to  see  how  the  opinion  of  the  majority 
could  be  regarded  as  sustaining  any  other  view  than  this  which 
the  learned  judge  repudiated.  It  was  expressly  declared  that 
the  legislature  "no  longer  has  the  power  to  make  such  a  court  a 
police  court;"  and  that  the  city  justice  of  the  peace  under  the 
circumstances  indicated  was  "simply  a  county  or  township  officer 
performing  no  municipal  function  whatever."  It  Would  be  difficult 
to  find  words  which  would  assert  more  directly  and  more  conclu- 
sively the  incompetence  of  the  legislature  to  trench  in  any  respect 
upon  the  jurisdiction  of  a  police  court  established  by  a  freeholders' 
charter  to  the  extent  that  such  jurisdiction  related  only  to  viola- 
tions of  municipal  ordinances  and  like  matters 

Briefly  reviewed,  the  argument  of  the  court  seems  to  have  been 
as  follows :  The  legislature  might  not  direct  the  expenditure  of 


382  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

municipal  funds  for  other  than  a  municipal  purpose.1  It  could 
not,  therefore,  direct  a  city  to  make  expenditures  for  a  justice  of 
the  peace  unless  such  justice  served  a  municipal  purpose.  To 
vest  in  such  a  justice  jurisdiction  over  violations  of  municipal 
ordinances  and  other  strictly  municipal  matters  (and  thus  permit 
him  to  perform  municipal  functions  for  which  the  city  might  be 
required  to  make  expenditures)  would  be  in  effect  to  require  the 
city  to  maintain  two  police  courts  where  one  such  court  was 
established  under  the  provisions  of  a  freeholders'  charter.  The 
amendment  of  1896  made  it  competent  for  such  a  charter  to  es- 
tablish a  police  court  and  determine  many  important  matters  in 
connection  therewith.  This  amendment  could  not  have  contem- 
plated that  a  court  so  established  would  be  merely  an  unnecessary 
additional  local  court.  In  consequence  the  establishment  of  such 
a  court  operated  to  deprive  the  justice's  court,  created  by  general 
law,  of  jurisdiction  as  to  municipal  matters  and  thus  to  render 
it  a  court  with  jurisdiction  only  as  to  the  enforcement  of  state 
laws.  As  such  the  financial  burden  of  maintaining  the  court 
could  not  be  saddled  upon  the  city,  because  the  court  performed  no 
municipal  function. 

This  was  obviously  the  line  of  reasoning  developed  in  the 
opinion  of  the  majority  of  the  court,  Judge  Shaw's  view  to  the 
contrary  notwithstanding.  And  its  effect  was  to  declare,  by  a 
somewhat  circuitous  process,  that  when  the  amendment  of  1896 
vested  in  the  city  adopting  a  freeholders'  charter  the  authority 
to  determine  the  jurisdiction  of  a  police  court  established  therein 
the  jurisdiction  so  determined  was,  so  far  at  least  as  it  related  to 
municipal  matters,  exclusive  in  its  nature.  But  the  case  did  not, 
as  has  already  been  pointed  out,  determine  that  a  freeholders' 
charter  might  prohibit  the  police  court  established  by  its  terms  from 
exercising  any  jurisdiction  as  to  the  enforcement  of  state  laws 
where  such  jurisdiction  was  conferred  by  these  laws.  This  point 
was  not  an  issue  of  the  case. 

1  The  case  cited  by  the  court  in  support  of  this  doctrine  was  Conlin  v.  Board  of  Su- 
pervisors of  San  Francisco,  114  Cal.  404  (1896) ;  supra,  258,  note  2,  For  the  con- 
stitutional provision  in  question  see  supra,  52. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     383 

It  will  be  recalled  that  in  People  v.  Toal 1  it  was  held  that  the 
original  provisions  of  the  freeholders'  charter  of  Los  Angeles  estab- 
lishing a  police  court  were  inoperative.  Following  this  decision 
the  legislature  in  1901  enacted  a  law  creating  a  police  court  for 
cities  of  "  class  one  and  a  half/'  which  embraced  only  Los  Angeles, 
and  providing  for  the  office  of  prosecuting  attorney  and  assistant 
prosecuting  attorney.  In  1907  this  act  was  amended  increas- 
ing the  number  of  such  attorneys  from  two  to  four  and  raising 
their  salaries.  It  was  contended  in  Fleming  v.  Hance 2  —  a  case 
already  mentioned  in  another  connection  —  that  this  act  was 
void,  first  on  the  ground  that  under  the  amendments  of  1896  the 
clause  of  section  8J  relating  to  police  courts  made  such  courts  a 
"  municipal  affair"  within  the  meaning  of  that  phrase  as  introduced 
into  section  6,  and  that  in  consequence  cities  under  freeholders' 
charters  were  no  longer  "  subject  to  and  controlled  by"  general  laws 
upon  this  subject;  and  second,  on  the  ground  that  prosecuting 
attorneys  were  not  a  part  of  such  courts  but  were  officers  perform- 
ing municipal  functions  and  as  such  not  subject  to  control  by 
general  laws.  This  second  contention,  as  we  have  seen,  was  sus- 
tained by  the  court.  The  first  contention  was  answered  as  follows : 

The  grant  contained  in  section  8£  is  permissive  merely.  Where  a  free- 
holders' charter  has,  pursuant  to  the  authorization  of  that  section,  created 
a  police  court,  the  power  of  the  legislature  to  create,  within  the  city,  an- 
other court  maintainable  at  the  expense  of  the  city,  is,  as  is  held  in  Graham 
v.  Mayor  etc.  of  Fresno,  151  Cal.  465,  at  an  end.  But  where,  as  is  the 
case  here,  the  city  has  not  taken  advantage  of  the  permission  extended 
by  section  8£  to  include  in  its  charter  a  valid  provision  for  the  organiza- 
tion of  a  police  court,  the  legislature  still  has,  under  section  1  of  article 
VI,  of  the  constitution,  power  to  create  police  or  other  "inferior  courts" 
in  any  incorporated  city  or  town.  In  cities  which  have  not  assumed  con- 
trol of  the  subject  matter  of  such  courts,  the  scope  of  legislative  control 
remains,  notwithstanding  the  adoption  of  section  8|,  as  broad  as  it  was 
before.  Nor  is  the  legislative  power  as  to  such  cities  limited  by  the  con- 
stitutional amendment  of  1896  to  section  6  of  article  XI,  exempting 
charter  cities  from  legislative  interference  in  "municipal  affairs."  The 
theory  of  the  Graham  case  is  that  where  a  city,  pursuant  to  section  8£, 
does  provide  in  its  charter  for  a  police  court,  the  subject  matter  of  such 

Y     1  Supra,  206.  »  153  Cal.  162  (1908) ;  supra,  257. 


384     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

provision  becomes  a  municipal  affair.  But  it  has  never  been  held,  and 
there  is  not  room  for  holding,  that  the  mere  adoption  of  section  8£  makes 
the  creation  and  organization  of  police  courts  a  municipal  affair  as  to  a 
city  governed  by  a  freeholders'  charter  where  such  charter  has  not  dealt 
with  the  subject  of  police  courts.  In  the  absence  of  charter  provision, 
the  legislature  retains  the  power  originally  vested  in  it  with  reference  to 
inferior  courts  throughout  the  state. 

It  is  not  easy  to  comprehend  why  the  California  court  on  this 
occasion,  as  well  as  in  certain  of  its  other  decisions,1  apparently 
went  out  of  its  way  to  add  to  the  vagueness  of  the  meaning  of  the 
term  " municipal  affairs."  As  has  already  been  noted,  the  con- 
stitution clearly  implied  that  all  affairs  that  might  be  subject 
to  governmental  regulation  were  either  municipal  or  non-municipal. 
Whether  an  affair  fell  in  one  or  the  other  category  did  not  depend 
upon  whether  the  legislature  or  the  city  had  taken  any  particular 
action.  In  the  view  of  the  constitution  its  classification  as  one 
or  the  other  kind  of  affair  was  purely  a  matter  of  fact,  although, 
as  has  already  been  remarked  and  as  the  opinions  of  the  courts 
fully  demonstrate,  in  last  analysis  such  classification  is  less  a 
matter  of  fact  than  of  individual  opinion.  In  spite  of  the  very 
evident  implication  of  the  constitution  the  court  in  the  opinion 
just  quoted  came  forward  with  the  somewhat  astounding  assertion 
that  the  subject-matter  of  police  courts  is  a  " municipal  affair" 
when  the  city  has  acted  upon  the  matter  through  the  medium  of  a 
freeholders'  charter,  but  is  not  such  an  affair  when  the  city  has 
failed  to  act.2  How,  it  may  be  pertinently  asked,  could  the 
inherent  nature  of  an  affair,  as  being  municipal  or  non-municipal, 
be  possibly  affected  by  action  or  non-action  on  the  part  of  the  city  ? 
The  absurdity  of  this  view  is  fully  shown  by  the  fact  that  the 
" municipal  affairs"  exemption  extended  to  cities  under  special 
legislative  charters  which  had  never  taken  action  upon  any  affair, 
municipal  or  otherwise.3 

1  See  discussion  of  the  opinion  rendered  in  the  Los  Angeles  School  District  case, 
supra,  303  ft. 

2  This  view  was,  it  may  be  recalled,  somewhat  similar  to  that  expressed  by  Judge 
Harrison,  speaking  for  himself  and  two  of  his  colleagues  in  Fragley  v.  Phelan,  supra, 
263-265.  i  Supra,  254. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     385 

It  is  indeed  difficult  to  understand  why  the  California  court 
did  not  reach  the  desired  judgment  by  declaring  that  the  control 
of  police  courts  was  in  no  respect  whatever  a  municipal  affair  within 
the  meaning  of  that  phrase  as  used  in  the  constitutional  amend- 
ment ;  that  it  was,  on  the  contrary,  in  every  possible  view  strictly 
a  "state"  affair;  but  that  the  constitution  after  1896  expressly 
conferred  upon  cities  adopting  freeholders'  charters  the  power  to 
regulate  this  state  affair  in  such  charters.  However  curious  it 
might  have  been  to  hold  that  the  constitution  had  endowed  cities 
with  the  power  to  control  a  state  affair  within  their  respective 
jurisdictions  (and  in  last  analysis  such  an  endowment  of  power 
would  not  be  greatly  out  of  harmony  with  the  actual  facts  of  our 
governmental  organization  as  created  by  law)  such  a  view  was 
certainly  more  logical  than  the  view  that  was  taken  by  the  court. 

Further  than  this,  the  doctrine  had  been  laid  down  in  several 
other  cases,  as  we  have  had  occasion  to  note,1  that  a  general  law 
even  though  it  related  to  a  municipal  affair  would  apply  to  a  city 
operating  under  a  freeholders'  charter  whenever  such  charter  was 
silent  in  respect  to  the  subject  governed  by  the  law.  The  charter 
of  Los  Angeles  was  silent  as  to  police  courts.  What  possible 
necessity,  therefore,  existed  for  the  declaration  that  a  police 
court  was  a  municipal  affair  when  the  city  had  acted  on  the  subject 
and  that  it  was  not  a  municipal  affair  when  the  city  had  failed  to 
act?  The  charter  contained  no  provision  on  the  subject  and  in 
consequence  the  law  applied  no  matter  what  constitutional  cate- 
gory police  courts  were  placed  in. 

To  sum  up,  it  may  be  said  that  the  following  points  have  been 
determined  in  respect  to  the  police  courts  created  under  the  author- 
ity of  section  8J  :  (1)  that  the  provision  was  not  retrospective  and 
did  not,  therefore,  revive  police  courts  which  cities  had  previously 
attempted  to  establish ;  (2)  that  a  charter  could  not  confer  upon  a 
police  court  jurisdiction  over  misdemeanors  arising  under  state 
laws  to  the  exclusion  of  the  jurisdiction  of  justices  of  the  peace ; 
(3)  that  a  charter  could  not  confer  upon  a  police  court  jurisdiction 
concurrent  with  that  of  the  "superior"  courts  of  the  state  because 

1  Supra,  320. 


386     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  another  constitutional  provision ;  (4)  that  a  state  law  could  not 
confer  upon  a  justice  of  the  peace  concurrent  jurisdiction  with  po- 
lice courts  over  the  enforcement  of  municipal  ordinances  and  like 
matters ;  (5)  that  a  charter  could  determine  the  absolute  compensa- 
tion of  police  court  officers  and  clerks  to  the  exclusion  of  any  com- 
pensation authorized  by  state  law  for  the  performance  by  such 
officers  or  clerks  of  strictly  state  functions ;  (6)  that  a  police  court 
is  a  municipal  affair  when  established  by  a  charter  but  is  not  a 
municipal  affair  when  not  so  established. 

The  following  points  have  not  been  clearly  settled :  (1)  whether 
a  charter  could  prohibit  a  police  court  from  exercising  jurisdiction 
conferred  by  state  law  —  for  example,  could  prohibit  a  police  judge 
from  acting  as  a  committing  magistrate  for  offenses  arising  under 
state  laws ;  (2)  to  what  extent,  if  any,  a  charter  may  confer  juris- 
diction over  the  enforcement  of  state  laws ;  and  (3)  whether  a  char- 
ter may  confer  any  jurisdiction  as  to  municipal  matters  upon  the 
courts  forming  apart  of  the  general  judicial  organization  of  the  state. 

To  what  Extent  might  the  Charter  of  a  Consolidated  City  and  County 
regulate  Matters  pertaining  to  "County"  Officers? 

In  Martin  v.  Board  of  Election  Commissioners  of  San  Francisco  i 
the  ridiculous  contention  was  made,  in  an  effort  to  prevent  the 
effectuation  of  the  San  Francisco  charter  of  1900,  that  the  last 
paragraph  of  the  amendment,  so  far  as  it  conferred  certain  specific 
powers  upon  consolidated  city  and  county  governments,  could  not 
be  carried  into  effect  because  it  "would  conflict  with  the  general 
law  of  the  state  establishing  a  uniform  system  of  county  and  town- 
ship government."  The  court  pointed  out  not  only  that  this  was 
tantamount  to  contending  that  a  law  could  not  be  passed  because 
it  might  perhaps  "infringe  upon  some  other  law,"  but  also  that  the 
act  which  established  uniform  county  and  township  government  in 
the  state  had  never  applied  to  San  Francisco  since  the  enactment 
of  the  consolidation  act  of  1856,  as  was  "shown  by  a  comparison 
of  law  and  facts  in  said  city  and  county." 

U26Cal.  404.     1899. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA    387 


Among  the  powers  conferred  by  section  8J  upon  a  consolidated 
city  and  county  was  the  authority  to  provide  for  the  compensation 
of  county  officers.  Acting  under  this  authority  the  framers  of  the 
charter  of  San  Francisco  provided  that  $4000  should  be  the  "full" 
salary  of  the  assessor,  whose  duty  it  was,  according  to  the  terms  of 
the  charter,  to  make  assessments  upon  property.  The  state  law 
imposed  upon  assessors  in  all  counties  the  duty  of  collecting  poll 
taxes  —  a  duty  which  was  not  mentioned  in  the  charter  for  the 
reason  that  the  proceeds  from  this  tax  went  exclusively  to  the 
state,  the  municipality  having  no  interest  whatever  in  them.  The 
law  also  provided  that  fifteen  per  centum  of  the  poll  taxes  collected 
should  go  to  the  assessor  in  the  form  of  compensation  for  making 
the  collections.  In  the  case  of  the  Matter  of  Dodge  l  the  question 
was  raised  whether  the  assessor  of  San  Francisco  was  entitled  to 
these  fees  provided  by  state  law  for  the  performance  of  this  state 
function.  The  question  thus  presented  was  not  wholly  free  from 
difficulties. 

On  the  one  hand,  the  constitution  declared  that  the  charter  of 
the  consolidated  government  might  "provide  for"  the  compensa- 
tion of  such  an  officer ;  but  it  did  not  declare  that  the  state  law 
might  not  provide  for  additional  compensation  out  of  state  funds. 
On  the  other  hand,  the  charter  declared  that  the  salary  provided 
for  the  assessor  should  be  his  complete  compensation  and  that  he 
should  turn  over  all  funds  collected  by  him  to  the  treasurer  of  the 
corporation.  Here  was  obviously  a  conflict  of  provision.  The 
majority  of  the  court  took  the  view  that  the  amendment  conferred 
upon  the  consolidated  city  and  county  the  power  to  determine 
absolutely  the  matter  of  the  assessor's  compensation;  that  the 
charter  had  in  effect  determined  that  this  officer  should  not  receive 
additional  compensation  for  the  collection  of  state  poll  taxes ;  and 
that  the  provisions  of  the  charter  in  this  regard  were  in  consequence 
controlling.  Chief  Justice  Beatty,  however,  read  a  dissenting 
opinion  in  which  he  held  that  the  amendment  did  not  prohibit 
the  state  from  providing  additional  compensation  for  the  perform- 
ance of  a  state  function  not  mentioned  by  the  charter ;  that  the 

i  135  Cal.  512.     1902. 


388     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

collection  of  the  taxes  in  question  was  not  a  municipal  affair,- 
and  that  in  consequence  the  state  law  superseded  the  charter  pro- 
visions which  declared  that  the  salary  named  should  be  the  "full" 
compensation  of  the  assessor  and  that  he  should  turn  over  all 
collections  to  the  treasurer  of  the  city  and  county.  It  is  manifest 
that  the  decision  of  the  case  turned  upon  a  somewhat  close  point 
of  construction.  It  is  of  interest  chiefly  as  it  demonstrates  the 
difficulty  of  phrasing  a  constitutional  provision  relative  to  the 
matter  of  municipal  home  rule,  even  where  the  provision  is  con- 
cerned with  the  guarantee  of  a  definite  and  specific  right. 

It  may  be  remarked  in  passing  that  this  case  did  not  necessitate 
any  determination  of  whether  the  charter  could  have  prohibited 
the  assessor  from  performing  this  function  for  the  state.  The 
charter  did  not  attempt  to  create  any  such  prohibition.  Mani- 
festly, however,  the  court  would  have  held  that  in  a  consolidated 
city  and  county  government  duties  could  be  imposed  by  general 
laws  upon  those  officers  who  correspond  to  county  officers  else- 
where in  the  state,  unless  the  constitution  expressly  conferred  upon 
the  framers  of  the  freeholders'  charter  the  exclusive  authority  to 
determine  the  matter  of  their  powers  and  duties.  No  such  author- 
ity was  given  by  the  terms  of  the  amendment. 

In  the  case  of  Growl ey  v.  Freud  l  question  was  raised  as  to  the 
power  of  the  city  and  county  of  San  Francisco  to  prescribe  civil 
service  regulations  for  the  appointment  of  such  officers  as  the 
sheriff,  the  clerk,  and  the  recorder  —  officers  that  corresponded  to 
county  officers  elsewhere  in  the  state.  It  will  be  recalled  that  in 
Kahn  v.  Sutro,2  decided  before  the  adoption  of  section  8J,  it  was 
held  that  the  officers  of  the  consolidated  government  could  be  di- 
vided into  city  officers  and  county  officers.  It  was  evidently  the 
view  of  the  court  that  the  adoption  of  section  8J  had  not  affected 
this  situation.  It  had  merely  conferred  the  power  to  regulate 
certain  specific  matters  in  respect  to  county  officers.  In  other 
words,  the  court  was  not  prepared  to  hold,  as  had  in  effect  been 
declared  in  the  police  court  cases,  that  the  clause  of  this  section 
relating  to  the  election  or  appointment  of  county  officers  had  trans- 

1  132  Cal.  440.     1901.  2  Supra,  248. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     389 

formed  this  subject  into  a  municipal  affair.  The  view  was  taken 
that  the  section  merely  operated  to  give  local  control  over  a  matter 
that  was  of  state  concern  and,  this  being  the  case,  it  was  the  opinion 
of  the  court  that  the  clause  in  question  should  be  rigidly  construed. 
It  was  declared  as  follows : 

The  functions  of  such  [county]  officers  are  general,  not  municipal. 
And  while,  in  the  American  system  of  state  governments,  the  people  of 
the  whole  state  have  generally  kept  in  their  own  hands  control  over  such 
important  public  governmental  agencies  as  county  officers,  still,  if  they 
choose  to  yield  up  part  of  that  control  by  adopting  a  constitutional 
amendment  such  as  section  8£,  there  is  no  apparent  reason  why  they  may 
not  do  so,  unless  the  amendment  should  be  so  revolutionary  as  to  be 
destructive  of  a  republican  form  of  government,  as  the  same  is  under- 
stood in  this  country.  Section  8?  cannot  be  said  to  be  of  that  character. 
But  when  the  people  of  the  whole  state  have  thus  yielded  up  part  of  their 
sovereign  power  to  a  local  municipality,  the  grant  will  certainly  not  be 
carried,  by  construction,  to  any  greater  extent  than  the  words  of  the 
granting  amendment  clearly  go.  By  section  8|,  power  over  county 
officers  is  given  to  the  municipality,  only  to  the  extent  of  providing  for 
the  manner  of  their  election,  and  their  terms  of  office  and  compensation. 
As  to  their  deputies,  —  and  they  alone  are  involved  in  this  action,  —  the 
only  power  granted  is  to  provide  "for  the  number  of  deputies  that  each 
shall  have,  and  for  the  compensation  payable  to  each  of  such  deputies." 
By  no  reasonable  stretch  of  construction,  can  this  be  held  to  include  the 
power  to  prescribe  the  qualifications  of  such  deputies,  by  any  mode  or 
process  whatever. 

From  the  decision  of  the  court  in  this  case  three  out  of  seven 
judges  dissented,  but  the  doctrine  there  announced  was  reaffirmed 
and  applied  in  the  case  of  Garnett  v.  Brooks.1  It  was  held  in  the 
latter  case  that  the  civil  service  provisions  of  the  charter  of  San 
Francisco  could  not  be  applied  to  a  copyist  in  the  office  of  the 
recorder.  The  court  declared  that  a  copyist  was  within  the  mean- 
ing of  the  term  " deputy"  as  used  in  the  last  paragraph  of  section 
8J.  That  term  was  employed,  said  the  court,  "in  its  larger  and 
very  usual  sense  and  includes  generally  all  the  employees  of  a 
county  officer  and  not  in  the  same  narrow  sense  in  which  it  is 
undoubtedly  sometimes  used  in  statutes  to  distinguish  some  em- 

1  136  Cal.  585.     1902. 


390     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

ployees  from  others."  The  effect  of  these  decisions  was  to  remove 
all  the  officers  of  the  consolidated  government  who  could  be 
regarded  as  county  officers  and  all  of  the  employees  of  such 
officers  from  the  operation  of  the  civil  service  provisions  of  the 
charter. 

In  Nicholl  v.  Koster l  the  validity  of  an  act  of  1909  providing 
probation  officers  for  the  several  counties  of  California,  including 
the  city  and  county  of  San  Francisco,  was  drawn  into  question. 
The  auditor  of  the  city  and  county  government  refused  to  allow 
the  salary  provided  by  law  for  one  of  these  officers  on  the  grounds 
(1)  that  the  compensation  of  city  and  county  officers  was  a  munici- 
pal affair,  and  (2)  that  under  the  provision  of  section  8J  it  was 
competent  for  San  Francisco  to  provide  for  the  election  and 
appointment  of  all  local  officers.  The  court  declared  without 
hesitation  that  the  municipal  affairs  amendment  had  no  applica- 
tion whatever  to  San  Francisco  "  except  in  so  far  as  that  sub- 
division of  the  state  possesses  and  exercises  municipal  functions 
and  constitutes  a  city,  as  distinguished  from  a  county."  Referring 
to  the  case  of  Fleming  v.  Hance,2  where  it  was  held  that  a  state 
law  regulating  the  matter  of  police  courts  was  applicable  to  a  city 
whose  charter  contained  no  provision  upon  this  subject,  the  opinion 
recited : 

The  principle  applied  in  this  passage  to  inferior  courts  established  by 
general  laws  under  section  1  of  Article  VI  of  the  constitution,  is  equally 
applicable  to  laws  giving  additional  jurisdiction  to  superior  courts,  such 
as  that  here  involved.  The  San  Francisco  municipal  charter  makes  no 
provision  for  the  compensation  of  probation  officers  and  their  assistants. 
They  constitute  a  part  of  the  machinery  of  the  judicial  system  of  the 
state,  officers  of  the  superior  court  provided  to  enable  that  court  to 
effectually  exercise  the  special  jurisdiction  given  by  the  act  concerning 
which  the  charter  does  not  speak.  Conceding  that  if  that  compensation 
was  provided  for  in  the  charter,  its  provisions  would  prevail  over  the  pro- 
visions of  the  act,  both  as  to  the  amount  and  as  to  the  manner  of  pay- 
ment, the  necessary  conclusion,  in  the  absence  of  such  charter  provisions 
in  view  of  this  principle,  is  that  the  act  is  in  force  and  that  the  city  and 
county  is  bound  by  its  provisions  relating  to  the  compensation  of  the 
probation  officers  of  the  so-called  "juvenile  court." 

1  157  Cal.  416.     1910.  2  Supra,  257,  383. 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     391 

It  must  be  observed  that  the  concession  which  the  court  here 
made  to  the  effect  that  the  freeholders'  charter  could  have  regulated 
the  compensation  of  these  probation  officers,  whom  the  court 
declared  to  be  "  officers  of  the  superior  court,"  was  not  attributable 
to  the  first  clause  of  the  section,  which  conferred  power  over  police 
courts,  but  to  the  last  paragraph,  which  conferred  power  upon  a 
consolidated  city  and  county  to  regulate  the  " compensation"  of 
" county  officers."  Had  this  case,  for  example,  been  brought  into 
court  by  the  city  of  Los  Angeles  instead  of  the  city  and  county  of 
San  Francisco,  there  is  no  question  that  this  concession  would 
never  have  been  voiced. 

It  is  to  be  noted  also  that  here  was  no  question  as  to  whether 
the  establishment  of  the  juvenile  court  together  with  probation 
officers  was  or  was  not  a  municipal  affair.  The  municipal  affairs 
amendment  was  made  the  basis  only  of  the  unsustained  contention 
that  the  compensation  of  county  officers  was  such  an  affair.  Had 
any  city  in  California,  under  the  authority  conferred  upon  it  to 
establish  police  courts,  set  up  its  own  juvenile  court  and  probation 
system,  it  would  have  been  necessary  to  decide  whether  the 
general  law  establishing  such  courts  throughout  the  state  (under 
the  power  of  the  legislature  to  create  inferior  courts)  would  have 
controlled  the  provisions  of  the  freeholders'  charter  establishing  a 
similar  court.  It  is  idle  to  speculate  as  to  what  might  have  been 
the  answer  of  the  California  court  to  this  question. 

Section  8%  as  amended  in  1911  and  1914 

From  the  above  review  of  cases  it  will  be  observed  that  most 
of  the  adjudications  that  have  arisen  out  of  the  construction  and 
application  of  the  section,  which  in  1896  conferred  upon  home  rule 
cities  certain  specific  powers  in  addition  to  general  power  over 
their  municipal  affairs,  have  involved  questions  as  to  the  extent 
of  the  city's  power  over  police  courts  and  of  the  control  of  consoli- 
dated cities  and  counties  over  so-called  county  officers.  In  no 
case  has  any  important  question  been  decided  concerning  the 
powers  which  this  amendment  conferred  upon  cities  over  boards 


392     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  education,  although  in  Bannerman  v.  Boyle  l  it  was  intimated 
that  a  city  might  not  be  competent  to  provide  in  a  freeholders' 
charter  for  the  removal  of  members  of  such  boards.  So  also,  no 
case  has  denned  or  delimited  the  power  of  cities  over  police  com- 
missioners and  police  forces,  this  being  probably  due  to  the  fact 
that  in  the  early  case  of  Popper  v.  Broderick 2  the  court  had  given 
no  uncertain  expression  to  the  view,  without  reference  specifically 
to  section  8J,  that  the  complete  management  of  the  local  police 
was  a  municipal  affair.  Likewise,  no  case  has  arisen  touching 
the  power  of  cities  over  boards  of  election,  although  as  we  have 
seen3  it  has  been  broadly  implied  that  the  control  at  least  of 
municipal  elections  is  a  municipal  affair.  Whether  this  amend- 
ment does  or  does  not  confer  power  upon  cities  to  create  and  regu- 
late boards  of  election  endowed  with  power  to  conduct  state  and 
national,  as  well  as  municipal,  elections  has  never  been  determined. 
In  practice,  however,  such  boards  established  under  the  provisions 
of  freeholders'  charters  do  in  fact  manage  all  elections  that  are 
held  in  their  respective  cities. 

The  protagonists  of  home  rule  in  California  were  by  no  means 
satisfied  with  the  situation  that  resulted  from  the  cases  construing 
and  applying  section  8J.  In  1911  the  section  was  rewritten  with 
the  end  in  view  of  nullifying  the  effect  of  certain  of  the  decisions 
of  the  court.  The  important  changes  made  were  as  follows : 

(1)  Cities  were  empowered  to  regulate  the  qualifications  of  the 
judges,  clerks,  and  attaches  of  police  courts.     There  appears  to 
have  been  no  adjudication  upon  the  power  of  cities  in  this  regard. 
Most  of  the  cases  relating  to  police  courts  had  involved  juris- 
dictional  questions,  but  evidently  doubt  had  arisen  as  to  the  com- 
petence of  cities  to  determine  qualifications. 

(2)  Cities  were  vested  with  power  to  control  the  qualifications, 
compensation,  and  removal  of  members  of  boards  of  education.4 

1  Supra,  344.  2  Supra,  255.  3  Supra,  267. 

4  The  second  subdivision  of  section  8j  was  altered  to  read  as  follows : 
"For  the  manner  in  which,  the  times  at  which,  and  the  terms  for  which  the 
members  of  boards  of  education  shall  be  elected  or  appointed,  for  their  qualifications, 
compensation,  and  removal,  and  for  the  number  which  shall  constitute  any  one  of 
such  boards." 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     393 

'he  grant  of  this  additional  power  was  unquestionably  prompted 
by  the  doubt  expressed  in  Bannerman  v.  Boyle  1  concerning  the 
validity  of  a  charter  provision  conferring  upon  the  mayor  the 
>wer  to  remove  members  of  boards  of  education. 

(3)  Specific  power  was  conferred  upon  cities  to  regulate  "the 
manner  in  which  and  the  times  at  which  any  municipal  election 
shall  be  held  and  the  result  thereof  determined."  2     It  is  not  easy 

understand  what  was  sought  to  be  accomplished  by  the  direct 
stowal  of  this  power  which  home  rule  cities  were  already  exer- 
cising and  which  the  court  in  Socialist  Party  v.  Uhl 3  had  already 
declared  to  be  a  municipal  affair. 

(4)  The  last  paragraph  of  the  section  was  amended  so  as  to  give 
-a  consolidated  city  and  county  the  authority  to  regulate  the 
"method  of  appointment,  qualifications,  tenure  of  office,  and  re- 
moval" of  the  deputies,  clerks,  and  other  employees  of  county 
officers ;    and  the  provisions  of  the  San  Francisco  charter  upon 
this  subject,  which  in  the  Crowley  case  4  and  the  Garnett  case  5 
were  held  to  be  inoperative,  were  expressly  revived.     The  primary 
object  of  this  alteration  was,  of  course,  patent  upon  its  face.     A 
secondary  object  seems  to  have  been  to  enable  San  Francisco  to 
establish  a  more  satisfactory  relation  between  its  appointed  board 
of  education,  created  by  its  own  charter,  and  its  superintendent 
of  schools,  an  officer  elected  according  to  the  requirement  of  state 
law.     There  seems  to  have  been  a  state  of  disharmony  between 
the  superintendent  and  the  board ;    and  with  the  end  in  view  of 
enabling  the  city  to  establish  a  system  conducive  to  greater  co- 
operation, the  amendment  specifically  provided  that  the  consoli- 
dated city  and  county  might  provide  for  the  manner  of  the  elec- 

1  Supra,  344. 

2  The  fourth  subdivision  of  section  8J  was  altered  to  read  as  follows : 

"For  the  manner  in  which  and  the  times  at  which  any  municipal  election  shall 
be  held  and  the  result  thereof  determined ;  for  the  manner  in  which,  the  times  at 
which,  and  the  terms  for  which  the  members  of  all  boards  of  election  shall  be  elected 
or  appointed,  and  for  the  constitution,  regulation,  compensation,  and  government 
of  such  boards,  and  of  their  clerks  and  attaches ;  and  for  all  expenses  incident  to 
the  holding  of  any  election." 

3  Supra,  267.  4  Supra,  388. 
5  Supra,  389. 


394     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tion  or  appointment  of  every  county  officer  with  the  sole  exception 
of  the  judges  of  the  superior  court.1 

Not  content  with  this  rewriting  of  section  8J,  the  people  of 
California  at  the  general  election  in  November,  1914  again 
amended  this  section  in  two  important  respects.  In  the  first 
place,  power  was  conferred  upon  cities  to  create,  in  addition  to 
police  courts,  "  municipal  courts  with  such  civil  and  criminal  juris- 
diction as  by  law  may  be  conferred  upon  inferior  courts."  The 
term  " municipal  court"  is  not  defined  by  the  constitution.  As 
is  well  known,  this  is  a  term  that  has  no  very  precise  meaning 
in  the  United  States.  Apparently,  however,  the  object  of  this 
amendment  was  to  confer  upon  cities  the  power  to  regulate  the  en- 
tire organization  of  courts  within  the  city  below  the  superior  court. 
It  is  difficult,  if  not  impossible,  to  say  what  construction  may  be 
given  to  this  provision  of  the  constitution  under  judicial  review.2 


1  The  last  paragraph  of  section  8|  was  amended  to  read  as  follows : 

"Where  a  city  and  county  government  has  been  merged  and  consolidated  into 
one  municipal  government,  it  shall  also  be  competent,  in  any  charter  framed  under 
said  Section  eight  of  said  Article  eleven,  or  by  amendment  thereof,  to  provide  for 
the  manner  in  which,  the  times  at  which,  and  the  terms  for  which  the  several 
county  and  municipal  officers  and  employees  whose  compensation  is  paid  by  such 
city  and  county,  excepting  judges  of  the  Superior  Court,  shall  be  elected  or  ap- 
pointed, and  for  their  regulation  and  removal,  and  for  their  compensation,  and  for 
the  number  of  deputies,  clerks,  and  other  employees  that  each  shall  have,  and  for 
the  compensation,  method  of  appointment,  qualifications,  tenure  of  office  and  re- 
moval of  such  deputies, 'clerks,  and  other  employees.  All  provisions  of  any  charter 
of  any  such  consolidated  city  and  county  heretofore  adopted,  and  amendments 
thereof,  which  are  in  accordance  herewith,  are  hereby  confirmed  and  declared 
valid." 

2  Cities  were  by  the  amendment  of  1914  empowered  by  subdivision  1  of  section 
8i  to  provide  in  their  charters  as  follows : 

"For  the  constitution,  regulation,  government,  and  jurisdiction  of  police  courts, 
and  for  the  manner  in  which,  the  times  at  which,  and  the  terms  for  which  the  judges 
of  such  courts  shall  be  elected  or  appointed  and  for  the  qualifications  and  com- 
pensation of  said  judges  and  of  their  clerks  and  attaches  ;  and  for  the  establishment, 
constitution,  regulation,  government,  and  jurisdiction  of  municipal  courts,  with 
such  civil  and  criminal  jurisdiction  as  by  law  may  be  conferred  upon  inferior  courts ; 
and  for  the  manner  in  which,  the  times  at  which,  and  the  terms  for  which  the  judges 
of  such  courts  shall  be  elected  or  appointed,  and  for  the  qualifications  and  compensa- 
tion of  said  judges  and  of  their  clerks  and  attaches ;  provided  such  municipal  courts 


SPECIFIC  POWERS  CONFERRED  IN  CALIFORNIA     395 

In  the  second  place,  a  provision  containing  more  than  three 
thousand  words  was  adopted  which  regulates  the  manner  in  which 
any  city  having  a  population  of  more  than  50,000  inhabitants 
may  become  separated  from  the  county  of  which  it  is  a  part  and 
may  form  a  consolidated  city  and  county  government,  and  which 
determines  also  the  manner  in  which  territory  may  in  the  future 
be  annexed  to  such  a  consolidated  subdivision  of  the  state.  It 
seems  wholly  unnecessary  here  to  set  forth  in  detail  this  provision 
of  the  amendment.  It  exhibits  in  fact  all  of  the  characteristics 
of  a  complicated  statute,  although  it  concludes  with  the  apparently 
serious  declaration  that  the  legislature  shall  enact  such  laws  as 
may  be  necessary  to  carry  out  the  provisions  of  the  section. 

shall  never  be  deprived  of  the  jurisdiction  given  inferior  courts  created  by  general 
law. 

"In  any  city  or  any  city  and  county,  when  such  municipal  court  has  been  estab- 
lished, there  shall  be  no  other  court  inferior  to  the  Superior  Court ;  and  pending 
actions,  trials,  and  all  pending  business  of  inferior  courts  within  the  territory  of 
such  city  or  city  and  county,  upon  the  establishment  of  any  such  municipal  court, 
shall  be  and  become  pending  in  such  municipal  court,  and  all  records  of  such  inferior 
courts  shall  thereupon  be  and  become  the  records  of  such  municipal  court." 


CHAPTER  XII 
HOME  RULE  IN  WASHINGTON 

IN  the  year  1889  the  territory  of  Washington  was  admitted  to 
statehood  in  the  Union.  The  constitution  under  which  this  state 
was  organized  contained  a  provision  granting  to  cities  of  more 
than  20,000  inhabitants  the  right  to  frame  their  own  charters. 
This  provision  was  obviously  copied  with  slight  changes  from  the 
constitution  of  California.  It  read  as  follows  : L 

Section  10.  Corporations  for  municipal  purposes  shall  not  be  created 
by  special  laws ;  but  the  legislature,  by  general  laws,  shall  provide  for 
the  incorporation,  organization  and  classification,  in  proportion  to  popu- 
lation of  cities  and  towns,  which  laws  may  be  altered,  amended  or  repealed. 
Cities  and  towns  heretofore  organized  or  incorporated  may  become  organ- 
ized under  such  general  laws  whenever  a  majority  of  the  electors  voting 
at  a  general  election  shall  so  determine,  and  shall  organize  in  conformity 
therewith ;  and  cities  or  towns  heretofore  or  hereafter  organized,  and  all 
charters  thereof  framed  or  adopted  by  authority  of  this  constitution,  shall 
be  subject  to  and  controlled  by  general  laws.  Any  city  containing  a 
population  of  twenty  thousand  inhabitants,  or  more,  shall  be  permitted 
to  frame  a  charter  for  its  own  government,  consistent  with  and  subject 
to  the  constitution  and  laws  of  this  state,  and  for  such  purpose  the  legis- 
lative authority  of  such  city  may  cause  an  election  to  be  had,  at  which 
election  there  shall  be  chosen  by  the  qualified  electors  of  said  city,  fifteen 
freeholders  thereof,  who  shall  have  been  residents  of  said  city  for  a  period 
of  at  least  two  years  preceding  their  election,  and  qualified  electors,  whose 
duty  it  shall  be  to  convene  within  ten  days  after  their  election  and  pre- 
pare and  propose  a  charter  for  such  city.  Such  proposed  charter  shall  be 
submitted  to  the  qualified  electors  of  said  city,  and  if  a  majority  of  such 
qualified  electors  voting  thereon  ratify  the  same,  it  shall  become  the  char- 
ter of  said  city,  and  shall  become  the  organic  law  thereof,  and  supersede 
any  existing  charter,  including  amendments  thereto,  and  all  special  laws 
inconsistent  with  such  charter.  Said  proposed  charter  shall  be  published 

i  Article  XI. 
396 


HOME  RULE  IN  WASHINGTON  397 

in  two  daily  newspapers  published  in  said  city,  for  at  least  thirty  days 
prior  to  the  day  of  submitting  the  same  to  the  electors  for  their  approval, 
as  above  provided.  All  elections  in  this  section  authorized  shall  only  be 
had  upon  notice,  which  notice  shall  specify  the  object  of  calling  such 
election,  and  shall  be  given  for  at  least  ten  days  before  the  day  of  elec- 
tion, in  all  election  districts  of  said  city.  Said  elections  may  be  general 
or  special  elections,  and  except  as  herein  provided  shall  be  governed  by 
the  law  regulating  and  controlling  general  or  special  elections  in  said 
city.  Such  charter  may  be  amended  by  proposals  therefor  submitted  by 
the  legislative  authority  of  such  city  to  the  electors  thereof  at  any  general 
election  after  notice  of  said  submission  published  as  above  specified,  and 
ratified  by  a  majority  of  the  qualified  electors  voting  thereon.  In  sub- 
mitting any  such  charter,  or  amendment  thereto,  any  alternate  article  or 
proposition  may  be  presented  for  the  choice  of  the  voters,  and  may  be 
voted  on  separately  without  prejudice  to  others. 

Section  11.  Any  county,  city,  town  or  township  may  make  and  en- 
force within  its  limits  all  such  local,  police,  sanitary  and  other  regulations 
as  are  not  in  conflict  with  general  laws. 

There  were  in  the  state  of  Washington  at  the  time  of  its  admis- 
sion to  the  Union  only  two  cities  that  might  qualify  with  the  popu- 
lation necessary  to  avail  themselves  of  the  authority  conferred 
by  this  provision.  These  cities  were  Seattle  and  Tacoma.  Almost 
immediately  after  the  constitution  went  into  effect  both  of  these 
cities  proceeded  to  draft  and  adopt  charters.  Freeholders'  char- 
ters were  ratified  in  Tacoma  in  April,  1890  and  in  Seattle  in  Octo- 
ber of  the  same  year.  Tacoma  remained  under  this  charter  until 
June,  1909,  when  a  second  charter  was  drafted  and  accepted  by 
the  voters.  Seattle  adopted  a  second  charter  in  March,  1896, 
which  charter  was  amended  in  certain  respects  every  two  years 
from  1900  to  1910  inclusive,  and  again  in  1911.  On  June  30, 
1914,  a  third  freeholders'  charter  was  submitted  to  the  voters 
of  the  city  but  was  rejected.  According  to  the  federal  census  of 
1900  the  city  of  Spokane  had  a  population  of  only  37,000.  It  had, 
therefore,  attained  the  population  that  was  fixed  by  the  consti- 
tution for  the  exercise  of  home  rule  powers.  This  city  did  not, 
however,  avail  itself  of  the  opportunity  to  frame  a  charter  for 
another  decade.  Its  first  freeholders'  charter  was  ratified  by  the 
people  at  a  special  election  held  in  December,  1910. 


398     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  1908  the  city  of  Everett,  having  attained  a  population  in 
excess  of  20,000  inhabitants,  adopted  a  charter  which  had  been 
framed  by  a  local  board  of  freeholders ;  and  in  1912  a  second  home 
rule  charter  was  ratified  by  the  voters  of  this  city.  According  to 
the  federal  census  of  1910  Bellingham  had  a  population  of  nearly 
25,000  inhabitants,  but  this  city  is  not  as  yet  (January,  1915) 
operating  under  a  charter  of  its  own  making.  Thus  of  the  five 
cities  of  Washington  which  satisfy  the  requirements  of  the  consti- 
tution of  1889  in  respect  to  population,  four  have  taken  advantage 
of  the  home  rule  privilege  conferred  by  that  instrument.  Two 
of  these  have  been  operating  under  home  rule  charters  for  a  quarter 
of  a  century. 

It  will  be  observed  that  the  home  rule  provision  of  the  Wash- 
ington constitution  was  similar  to  that  of  Missouri  and  unlike 
i  that  of  California  in  its  failure  to  require  that  charters  and  charter 
'  amendments  should  be  submitted  to  the  legislature  for  ratifica- 
tion or  rejection.  Under  these  circumstances  no  question  could 
be  reasonably  raised  as  to  the  legal  nature  of  a  freeholders'  charter 
—  that  is,  whether  or  not  such  charter  was  "  enacted  by  the  legis- 
lature by  law."  1 

On  the  other  hand,  just  as  in  the  California  provision,  cities 
previously  organized  might  become  organized  under  general  laws 
"for  the  incorporation,  organization,  and  classification"  of  cities 
only  upon  a  majority  vote  of  the  electors;  and  all  cities,  no 
matter  when  or  how  organized,  and  all  charters,  whether  of  legis- 
lative or  local  origin,  were  declared  to  be  "  subject  to  and  controlled 
by  general  laws."  Here,  then,  was  a  clear  contradiction  of  terms 
within  half  a  dozen  lines  of  the  constitution ;  for  how  could  cities 
become  organized  under  general  laws  only  upon  a  vote  of  the 
people  and  at  the  same  time  be  subject  to  and  controlled  by  gen- 
eral laws  without  any  such  vote?  We  have  seen  that  in  Cali- 
fornia an  identical  declaration  of  the  constitution  led  to  very  seri- 
ous difficulties  and  to  expressions  of  judicial  opinion  which  were 
wholly  illogical  and  inconsistent.2  We  have  seen,  for  example, 
how  the  California  court  held  that  while  a  city  did  not  become 

1  Supra,  206  ff.  »  Supra,  Ch.  VIII. 


HOME  RULE  IN  WASHINGTON  399 

organized  under  the  general  municipal  corporation  act  of  1883 
until  this  act  had  been  accepted  by  the  voters  of  the  city,  yet  such 
city  was,  without  local  acceptance,  subject  to  and  controlled  by  a 
general  law  which  was  in  effect  an  amendment  of  this  act.1  In 
California  this  difficulty  was  sought  to  be  overcome  by  the  "mu- 
nicipal affairs"  amendment  of  1896. 

The  difficulty  of  construing  this  conflicting  declaration  of  the 
constitution  never  became  so  aggravated  in  Washington  as  in 
California.  And  the  reason  is  not  far  to  seek.  The  legislature  of 
Washington  never  enacted  any  general  charter  for  cities  of  the 
first  class  (that  is,  cities  of  over  20,000  inhabitants)  which  were 
entitled  under  the  constitution  to  frame  their  own  charters.  Such 
cities,  if  they  failed  to  take  advantage  of  home  rule  powers  con- 
ferred, continued  to  operate  under  their  old  special  charters  or 
under  the  general  law  for  the  government  of  cities  of  the  second 
class  from  which  they  had  emerged  by  growth  of  population. 
This  being  the  situation  of  the  statutes,  the  contention  has  never 
been  made  that  cities  of  the  first  class  were  not  subject  to  and 
controlled  by  general  laws  applicable  to  their  class  because  they 
had  not  accepted  a  general  charter  law  for  the  "  incorporation, 
organization,  and  classification"  of  the  cities  of  such  class.  It 
may  be  said,  therefore,  that  this  difficult  and  complicated  question 
arising  out  of  the  uncertain  phraseology  of  the  constitution  has 
not  arisen  in  Washington  chiefly  because  the  legislature  has  not 
seen  fit  to  enact  a  general  charter  law  which  might  be  accepted  by 
any  city  of  the  first  class  upon  a  vote  of  its  inhabitants.  There 
are  a  few  cases  indeed  in  which  this  question  might  apparently 
have  been  raised.2  But  in  the  main,  so  far  as  conflicts  between 
state  laws  and  charter  provisions  are  concerned,  the  courts  have  j 
been  compelled  merely  to  determine  what  general  laws  a  city 
operating  under  a  charter  of  its  own  making  was  subject  to  and 
controlled  by ;  and  this  determination  has  been  made  with  little 
or  no  consideration  of  the  constitutional  declaration  that  cities 
should  become  organized  under  general  laws  only  upon  a  vote  of 
their  inhabitants. 

1  Supra,  237.  *  Infra,  433,  434. 


400     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  first  legislature  which  met  under  the  constitution  of  1889 
adopted  an  elaborate  statute  —  a  so-called  " enabling  act" 
which  added  in  some  minor  respects  to  the  procedure  laid  down  in 
the  constitution  under  which  a  city  might  avail  itself  of  the  oppor- 
tunity to  frame  and  amend  its  own  charter.1  But  more  important 
than  this,  the  statute  in  question  assumed  to  regulate  in  great  detail 
the  powers  which  a  home  rule  city  might  exercise  through  the  medium 
of  its  own  charter.  The  constitution  itself  nowhere  clearly  indi- 
cated that  the  legislature  was  endowed  with  power  to  determine 
the  metes  and  bounds  of  the  home  rule  right  conferred  upon  cities, 
although  perhaps  the  requirement  that  charters  should  be  "  sub- 
ject to  the  constitution  and  laws  of  the  state"  could  be  con- 
strued to  vest  this  competence  in  the  legislature.  At  any  rate, 
from  the  very  beginning  the  legislature  acted  upon  the  assumption 
of  its  own  competence  in  this  regard ;  and  while  it  must  be  ad- 
mitted that  the  enabling  act  of  1890  was  fairly  liberal  in  its  defini- 
tion of  the  powers  which  might  be  exercised,  yet  the  existence  of 
this  statute,  accepted  by  the  courts  without  question,  has  had  an 
exceedingly  important  bearing  upon  the  status  of  home  rule  in 
Washington.  In  consequence  of  this  fact  it  is  very  nearly  im- 
possible to  classify  the  Washington  cases  upon  this  subject  into 
those  which  have  involved  questions  of  conflict  between  state 
laws  and  charter  provisions  and  those  which  have  involved  merely 
questions  concerning  the  scope  of  powers  of  the  home  rule  city. 
In  the  discussion  of  the  cases  which  follows  no  attempt  has  been 
made  to  divide  the  cases  into  these  two  classes.  The  character 
of  the  questions  involved  is  indicated  to  a  limited  extent  in  the 
topical  headings. 

Has  a  City  the  Power  to  create  a  Police  Court? 

The  first  freeholders'  charter  of  Tacoma  contained  provisions 
that  established  a  police  court.  For  this  purpose  the  framers 
of  the  charter  employed  the  language  of  the  general  municipal 
corporations  act  of  1890  which  created  a  police  court  in  cities  of 

1  Laws  of  Wash.,  1890,  p.  215.     See  also  Laws  of  1895,  p.  27  ;  Laws  of  1903,  p.  86. 


HOME   RULE  IN  WASHINGTON  401 

the  second  class.  In  the  case  of  In  re  Cloherty  l  question  was 
raised  as  to  the  legality  of  this  police  court  created  by  the  charter. 
It  was  urged  upon  the  supreme  court  that  the  authority  to  set 
up  a  municipal  court  was  necessarily  implied  from  the  constitu- 
tional grant  of  power  to  frame  a  charter.  While  admitting  that 
an  argument  in  many  respects  plausible  might  be  built  upon  this 
foundation,  the  opinion  recited  in  part  as  follows : 

But  it  must  be  remembered  that,  although  the  power  to  frame  a  char- 
ter is  conferred  by  the  constitution,  no  greater  intendments  are  inferred 
from  that  fact  than  if  it  were  conferred  by  a  mere  act  of  the  legislature, 
since,  by  the  same  sections,  these  favored  cities  are  to  be  at  all  times  sub- 
ject to  the  general  laws  of  the  state.  They  are  not  in  any  sense  erected 
into  independent  governments ;  their  existence  as  municipal  governments 
depends  upon  the  legislative  will;  their  areas  may  be  extended  only  in 
the  manner  prescribed  by  statute ;  the  elective  franchise  is  exercised  under 
the  general  laws  applicable  to  the  whole  state;  the  power  of  eminent 
domain  is  not  extended  to  them  except  by  statutory  delegation;  and 
their  municipal  legislation  is  restricted  to  those  subjects  which  rightfully 
belong  to  them  in  their  corporate  capacity.  A  charter  framed  under  the 
constitutional  provision  is  of  no  more  or  larger  force  than  a  legislative 
charter,  and  can  lawfully  treat  only  of  matters  relating  to  the  internal 
management  and  control  of  municipal  affairs,  subject  to  constitutional 
and  legislative  regulations ;  it  provides  officers,  ways  and  means,  police 
and  other  minutiae  of  local  administration  which  are  necessary  to  the 
public  convenience,  peace  and  good  order;  but,  for  the  enforcement  of 
criminal  ordinances,  the  constitution  and  the  legislature  have  provided 
independent  courts  of  competent  jurisdiction  in  the  persons  of  justices  of 
the  peace. 

While  it  is  plain  to  see  that  the  court  in  this  early  case  was 
prepared  to  take  a  very  narrow  view  of  the  scope  of  power  embraced 
within  the  authority  to  frame  a  charter,  yet  it  is  not  easy  to  fol- 
low the  argument  that  was  here  advanced.  Surely  the  court 
did  not  mean  to  declare  that  the  legislature  of  the  state  was, 
under  the  constitution,  powerless  to  incorporate  in  a  legislative 
charter  provisions  establishing  a  police  court.  The  constitution 
expressly  empowered  the  legislature  to  create  "inferior  courts.'* 
In  reference  to  this  provision  of  the  constitution  it  was  remarked 

12  Wash.  137.      1891. 


402     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

elsewhere  in  the  opinion  that  a  natural  conclusion  could  be  drawn 
"that  a  court  for  the  administration  of  municipal  ordinances 
must  have  been  created  by  an  act  of  the  legislature."  In  spite 
of  this  fact  the  argument  adduced  in  the  above-quoted  remarks 
seems  to  have  been  that  a  city  in  framing  a  charter  could  exer- 
cise no  greater  powers  than  could  the  legislature  in  framing  a 
charter.  But  this  would  appear  to  have  been  an  argument  in  favor 
of  rather  than  in  derogation  of  the  competence  of  the  city.  It  was 
in  this  manner,  however,  that  the  proposition  to  the  effect  that  a 
city  derived  its  authority  to  establish  a  police  court  from  the 
grant  of  power  to  frame  a  charter  was  disposed  of  by  the  court. 

The  claim  was  also  made  in  this  case  that  if  the  competence  of 
the  city  was  not  referable  directly  to  the  constitutional  grant  of 
power  to  frame  a  charter,  it  was,  nevertheless,  supportable  under 
the  enabling  act  of  1890.  But  the  court  deemed  it  sufficient  to 
say  that  "the  power  conferred  upon  the  legislature  to  create 
additional  inferior  courts  is  not  one  of  its  original,  inherent  powers 
as  the  supreme  legislative  body  of  the  state,  which  can  be  dele- 
gated by  it,  but  is  a  delegated  power  which  must  be  exercised  in 
the  manner  pointed  out  and  cannot  be  again  delegated."  The 
following  conclusion  was  reached : 

The  truth  is  that,  whether  by  oversight,  or  mistake,  or  intention,  we 
are  not  required  to  guess,  the  legislature  in  omitting  to  enact  a  general 
law  for  the  incorporation  and  government  of  cities  of  the  first  class  also 
failed  to  supply  them  with  police  courts,  but  left  the  administration  of 
their  criminal  ordinances  with  the  justices  of  the  peace,  where  it  had  been 
for  many  years.  It  may  well  be  that  that  body  can  easily  be  prevailed 
upon  to  supply  the  deficiency ;  but  it  is  not  within  the  province  of  this  court 
to  strain  constructions  to  accomplish  such  an  object  without  legislation. 

Apparently  the  Washington  legislature  has  never  supplied  the 
deficiency  here  referred  to.  Police  court  functions  are  performed 
in  all  home  rule  cities  by  justices  of  the  peace,  one  of  whom  is, 
under  the  terms  of  the  general  law  relating  to  justices  in  cities, 
designated  by  the  mayor  to  act  as  "police  judge  or  justice."  In 
Tacoma  at  least,  and  presumably  in  other  cities  also,  the  justice 
so  designated  is  given  a  salary  in  addition  to  the  usual  salary  of 


HOME  RULE  IN  WASHINGTON  403 

a  justice  of  the  peace ; 1  and  his  court  is  naturally  far  more  impor- 
tant than  that  of  the  other  justices.  This  system,  however,  has 
manifestly  grave  disadvantages. 

What  is  the  Extent  of  the  City's  Police  Powers? 

Following  the  section  of  the  Washington  constitution  which 
granted  to  cities  the  right  to  frame  charters  there  was  introduced 
a  section,  identical  with  that  of  the  California  constitution,  which 
expressly  conferred  the  police  power  upon  cities.2  The  courts  of 
Washington  have  not,  however,  been  called  upon  to  construe 
and  apply  this  provision  in  very  many  cases  and  have  not  as  yet 
drifted  into  the  difficulties  encountered  by  the  California  courts.3 

Reference  will  be  made  in  a  later  connection  to  certain  views 
on  the  subject  of  the  police  power  which  have  been  expressed 
by  the  Washington  court  in  one  or  two  of  the  cases  that  have 
involved  questions  concerning  the  powers  of  cities  over  public 
utilities.4  It  will  be  seen,  however,  that  in  none  of  these  cases 
was  it  clearly  asserted  that  cities  enjoyed  by  direct  grant  from  the 
constitution  any  general  police  powers  in  addition  to  those  enu- 
merated in  the  enabling  act  or  in  the  local  charter.  In  one  of 
them,  State  ex  rel.  Webster  v.  Superior  Court,5  the  court,  speaking 
to  the  clause  of  the  constitution  upon  this  subject,  had  this  to  say : 

The  people,  not  only  of  this  state,  but  generally  in  other  states,  have 
gone  beyond  the  original  conceptions  of  local  self-government ;  and  to 
sustain  and  make  practical  needed  reforms,  have  had  to  fall  back  upon 
the  police  power  of  the  state  as  declared  by  laws  general  in  their  applica- 
tion. This  rule  in  many  states  is  the  result  of  judicial  construction,  but 
our  people  left  no  room  for  construction.  Section  11,  art.  11,  state  con- 
stitution, is  a  positive  declaration.  Any  county,  city,  town,  or  town- 
ship, may  make  and  enforce  within  its  limits  all  such  local,  police,  sani- 
tary, and  other  regulations  as  are  not  in  conflict  with  general  laws. 

This  section  is  subject  to  the  same  interpretation  as  sec.  10,  and 
under  it  a  general  law  becomes  controlling.  The  words  "not  in  conflict 
with  general  laws,"  as  there  employed,  do  not  mean  that  municipal  regu- 
lations passed  in  the  absence  of  general  laws  foreclose  the  right  of  the 

1  Tacoma  charter  of  1909,  sec.  74.  2  Art.  XI,  sec.  11 ;   supra,  397. 

3  Supra,  322-333.  4  Infra,  438,  442.  6  67  Wash.  37  (1912) ;   infra,  440. 


404     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

state  to  assert  its  sovereignty,  but  merely  that  the  police  power  may  be 
exercised  until  such  time  as  the  state  acts.  They  must  then  give  way  to 
the  general  law.  If,  by  its  inaction,  the  state  has  permitted  a  munici- 
pality to  assume  and  exercise  its  police  power,  it  is  not  foreclosed  of  its 
right,  if  the  legislature  afterwards  sees  fit  to  exercise  it. 

Applied  to  the  case  of  home  rule  cities,  the  opinion  thus  ex- 
pressed would  seem  to  indicate,  in  the  first  place,  that  no  law  of 
general  application  was  necessary  in  Washington  to  confer  the 
police  power.  Such  a  construction  of  the  terms  of  the  consti- 
tution appears  to  have  been  so  obvious  as  scarcely  to  have  required 
formulation.  But  when  it  is  considered,  as  we  shall  have  occasion 
to  note,  that  the  general  law  known  as  the  enabling  act,  if  it  was 
not  declared  to  be  indispensable,  was  nevertheless  deferred  to 
by  the  courts  as  a  determining  guide  in  respect  to  the  powers 
which  a  city  might  exercise  under  the  direct  constitutional  grant 
of  authority  to  frame  a  charter,  the  pertinence  of  this  rule  of  con- 
struction concerning  the  police  power  becomes  manifest.  The 
real  question  is :  To  what  extent,  if  any,  has  it  been  applied? 

In  the  second  place,  the  above-quoted  views  laid  down  the  rule 
that  a  general  police  law  of  the  state,  if  in  positive  conflict  with  a 
municipal  police  ordinance,  would  supersede  and  control  the 
ordinance.  This  was  ascribed  to  the  specific  declaration  of  the 
constitution  that  municipal  police  regulations  should  not  be  in 
conflict  with  general  laws ;  but  it  was  after  all  merely  to  apply  a 
rule  of  practically  universal  acceptance  —  a  rule  which  in  point 
of  fact  has  little  if  any  relation  to  the  subject  of  the  powers  of  a 
city  under  a  freeholders'  charter,  since  cities  under  legislative 
charters  also  commonly  exercise  concurrent  police  powers  with 
the  state  legislature.1 

In  Shepard  v.  Seattle2  a  municipal  ordinance  regulating  the 
location  and  maintenance  of  private  hospitals  and  sanitariums 
was  sustained  upon  the  ground  that  "in  all  matters  pertaining 
to  the  public  health  and  public  safety,  substantially  the  entire 
police  power  of  the  state  is  vested  in  municipal  corporations  of 
the  first  class."  Reference  was  not  specifically  made  to  the  ex- 

1  Supra,  138,  256.  J  59  Wash.  363.     1910. 


HOME  RULE  IN  WASHINGTON  405 

press  constitutional  grant  of  the  police  power,  but  this  was  doubt- 
less what  the  court  had  in  mind.  Even  so,  the  power  in  question 
could  have  been  easily  sustained  by  reference  to  the  broad  enumera- 
tion of  powers  contained  in  the  enabling  act  and  in  the  charter.  It 
may  be  remarked  also  that  the  court  hi  this  case  passed  upon  the 
reasonableness  of  the  ordinance  in  question,  thereby  indicating 
that  the  doctrine  as  to  the  competence  of  the  judiciary  to  declare 
void  an  ordinance  on  the  ground  of  its  being  unreasonable  was  in 
no  wise  qualified  or  delimited  either  by  the  existence  of  a  direct 
constitutional  grant  of  the  police  power  or  by  the  fact  that  the 
city  was  under  a  freeholders'  charter. 

In  Tacoma  v.  Keisel 1  judgment  was  awarded  hi  support  of  an 
ordinance  prohibiting  treating  in  saloons.  It  was  urged  before 
the  court  that  the  powers  given  to  the  cities  by  the  provisions  of 
the  enabling  act  of  1890  did  not  include  the  power  to  enact  the 
ordinance  in  question.  It  was  held,  however,  that  the  power 
granted  by  the  statute  "to  regulate  the  sale  or  giving  away  of 
intoxicating  .  .  .  liquors,"  when  taken  in  connection  with  the 
power  to  license  and  the  power  to  ordain  police  regulations  as 
conferred  by  the  provisions  of  the  same  act,  was  sufficient  to  justify 
the  enactment  of  the  ordinance  under  review.  This  reduced  the 
question  before  the  court  to  the  consideration  of  the  reasonable- 
ness of  the  ordinance  and  resolve  was  reached  in  favor  of  such 
reasonableness.  The  court  expressly  averred,  in  the  course  of 
the  opinion  rendered,  that,  since  counsel  had  not  urged  the 
point,  it  was  unnecessary  to  consider  the  scope  of  powers  which 
a  "city  may  possess  by  virtue  of  the  constitutional  provisions 
enabling  it  to  frame  its  own  charter  and  to  enforce  local  police 
regulations." 

In  the  case  of  Seattle  v.  Goldsmith  2  an  ordinance  requiring 
that  t\\e  true  weight  or  measurement  of  commodities  sold  hi  con- 
tainers should  be  stamped  or  printed  on  such  containers  was 
upheld,  and  the  constitutional  clause  conferring  police  power 
upon  cities  was  directly  referred  to ;  but  here  again  the  authority 
of  the  city  to  enact  such  an  ordinance  was  found  not  only  in  the 

i  68  Wash.  685.     1912.  2  73  Wash.  54.     1913. 


406     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

constitution  but  also  in  the  statutes  and  in  the  "  assertion  of  the 
power  by  the  city  in  its  charter." 

Finally  it  may  be  noted  that  in  Malette  v.  Spokane  1  one  of 
the  questions  decided  was  that  an  ordinance  of  the  city  fixing 
an  eight-hour  day  on  all  public  work  executed  for  the  city  under 
contract  was  a  valid  exercise  of  powers  conferred,  first,  by  the 
constitutional  grant  of  the  police  power  and,  second,  by  certain 
general  provisions  of  the  enabling  act  of  1890.  In  view  of  the 
fact  that  in  1899  arid  again  in  1903  statutes  had  been  enacted 
which  specifically  required  that  on  all  public  work  done  for  the 
state  or  any  county  or  municipality  by  contract  eight  hours  should 
constitute  a  day's  work,  and  in  view  of  the  further  fact  that  the 
court  declared  the  ordinance  under  review  to  have  been  enacted 
in  pursuance  of  the  public  policy  of  the  state  as  laid  down  in  these 
statutes,  it  is  difficult  to  understand  wherein  the  necessity  lay  for 
any  reference  whatever  to  the  police  power  of  the  city.  The 
absurd  contention  was  indeed  made  that  the  ordinance  was  con- 
trary to  public  policy  because  it  increased  the  cost  of  public  work. 
Even  so,  it  is  highly  questionable  whether  either  a  law  or  an  ordi- 
nance upon  this  subject,  when  confined  solely  to  public  work, 
can  by  any  course  of  acceptable  reasoning  be  sustained  under  the 
police  power  of  the  state  or  city.  The  point  as  to  whether  the 
state  legislature  could  compel  a  municipal  corporation  organized 
under  a  freeholders'  charter  to  incorporate  in  all  of  its  contracts 
for  public  work  a  requirement  in  respect  to  the  hours  of  labor  of 
employees  was  not  raised  or  discussed,  for  the  obvious  reason  that 
the  city  had  apparently  without  question,  recognized  this  com- 
petence in  the  legislature.2 

1  77  Wash.  205.     1913. 

2  It  may  be  remarked  incidentally  that  the  courts  of  certain  jurisdictions  have 
refused  to  uphold  such  competence  in  the  legislature  even  with  respect  to  cities 
operating  under  legislative  charters,  although  the  cases  upon  this  subject  are  by 
no  means  in  harmony.     See,  for  example,  People  ex  rel.  Rodgers  v.  Coler,  166  N.  Y. 
1  (1901)  ;   Street  v.  Varney  Electrical  Supp.  Co.,  160  Ind.  338  (1902) ;  Cleveland  v. 
Construction  Co.,  67  Oh.  St.  197  (1902)  ;   In  re  Dalton,  61  Kas.  257  (1899).  ,  The 
ground  advanced  in  opposition  to  such  statutes  is  that  they  operate  to  deprive  the 
city  and  the  contractors  of  freedom  Of  contract  and  thus  violate  a  guarantee  of  the 
federal  constitution.     The  application  of  such  a  rule  is  certainly  open  to  serious 


HOME  RULE  IN  WASHINGTON  407 

From  the  above  review  of  Washington  cases  dealing  with  the 
subject  of  the  police  power  in  home  rule  cities  the  conclusion  may 
doubtless  be  stated  that  the  direct  constitutional  grant  of  the 
police  power  has  been  fairly  negligible  in  its  effect.  It  has  pro- 
duced no  grave  difficulties,  but  it  has  also  been  productive  of  no 
great  good.  No  question  has  arisen  as  to  what  organ  of  the  city 
government  may  act  for  the  city  in  the  exercise  of  a  police  power 
referable  solely  to  this  direct  grant  because  in  no  case  has  any 
power  been  sustained  which  could  not  have  been  referred  to  the 
enabling  act  and  the  charter  itself.  In  respect  to  the  scope  of 
the  city's  police  powers,  as  well  as  in  respect  to  the  subordination 
of  police  ordinances  not  only  to  state  laws  but  also  to  the  view  of 
the  courts  concerning  their  reasonableness,  home  rule  cities  have 
been  in  practically  the  same  position  as  cities  in  all  parts  of  the 
country  under  legislative  charters. 

What  Powers  may  a  City  exercise  in  Respect  to  the  Annexation  of 

Territory  ? 

Shortly  after  the  adoption  of  its  first  freeholders'  charter  the 
city  of  Tacoma,  acting  under  the  authority  of  and  in  the  manner 
prescribed  by  a  provision  of  the  general  municipal  incorporation 
act,1  which  provision  applied  to  all  cities,  annexed  certain  terri- 
tory. In  the  case  of  State  ex  rel.  Snell  v.  Warner 2  contention  was 
made  that  this  territory  had  not  been  legally  annexed  because  the 
"proposed  extension  of  the  limits  of  said  city  was  not  submitted 
to  or  voted  upon  by  the  electors  of  said  city  as  an  amendment  to 
the  charter."  The  question  was  thus  squarely  put  before  the 
court  as  to  whether  the  provision  of  a  freeholders'  charter  contain- 
ing a  description  of  the  municipal  boundaries  could  be  amended 
in  a  manner  different  from  that  prescribed  by  the  constitution 
for  the  amendment  of  such  charters. 

question  and  has  been   absolutely  denied  by  the  United   States  Supreme    Court 
as  well  as  certain  state  courts  (supra,  26) ;  but  it  may  be  remarked  that  if  statutes  of 
this  kind  are  void  as  applied  to  cities  under  legislative  charters,  there  can  be  no  doubt 
whatever  as  to  their  being  invalid  as  applied  to  cities  under  freeholders'  charters. 
1  Act  of  March  27,  1890,  sec.  9.  2  4  Wash.  773.     1892. 


408  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  court  took  the  view  that  the  city  was  certainly  not  compe- 
tent to  effect  an  extension  of  its  boundaries  through  the  medium 
of  its  own  charter.  To  permit  the  city  to  exercise  such  power  as 
this  would  be  to  make  the  constitution  "read  in  effect  that  a 
corporation  might  frame  a  charter  for  its  own  government  and 
the  government  of  such  additional  territory  as  it  might  choose  to 
include  within  its  limits."  Upon  this  view  it  was  declared  that 
the  grant  of  power  to  frame  a  charter  had  "no  relation  to  the 
subject  of  boundaries  or  territory."  The  court  entered  upon  a 
somewhat  elaborate  discussion  of  the  meaning  of  the  term  "  char- 
ter "  as  that  term  was  of  necessity  affected  by  the  provision  of  the 
constitution  prohibiting  special  legislation  for  cities  and  requiring 
general  legislation.  The  conclusion  was  reached  that  the  charter 
of  a  city  included  :  (1)  the  decree  of  its  corporate  existence,  which 
decree,  since  the  prohibition  of  special  legislation,  could  not  be 
made  direct  by  the  legislature;  (2)  the  description  of  the  mu- 
nicipal boundaries  contained  in  such  decree,  which  likewise  could 
not  be  made  direct  by  the  legislature;  (3)  "the  law  of  its  action 
or  government,"  this  law  being  in  the  case  of  cities  under  general 
laws  established  directly  by  the  legislature,  and  in  the  case  of 
cities  under  freeholders'  charters,  by  such  charters.  Upon  the 
basis  of  this  argument  it  was  in  effect  declared  that  the  descrip- 
tion of  the  boundaries  of  a  home  rule  city  was  no  part  whatever 
of  the  charter  for  its  own  government  which  the  city  was  empow- 
ered to  frame  and  adopt.  Having  established  this  proposition 
to  its  own  satisfaction,  the  court  declared  as  follows : 

The  city  of  Tacoma,  in  adopting  its  freeholders'  charter,  could  neither 
exclude  portions  of  the  area  covered  by  it  under  the  act  of  1886,  nor 
include  additional  territory,  because  its  previous  boundaries  were  the 
jurisdictional  limits  of  its  existence  for  every  purpose.  If,  then,  the  exten- 
sion of  its  boundaries  would  be  an  amendment  of  its  charter,  here  would 
be  one  amendment  which  it  could  not  make;  and  the  express  provision 
that  it  may  amend  its  charter  in  any  particular  its  people  see  fit,  is  made 
null  and  inoperative.  But  it  may  be  said  that  the  legislature  may  au- 
thorize it  to  annex  the  territory,  provided  that  the  annexation  be  effected 
by  the  adoption  of  an  amendment  to  its  charter  in  the  way  prescribed  by 
the  constitution  and  that  such  annexation  might  be  accomplished  even 
without  the  consent  of  people  in  the  annexed  territory.  This  is  fully 


HOME  RULE  IN  WASHINGTON  409 

granted.  But  in  such  case  whence  comes  the  authority  to  amend  —  from 
the  constitution  or  the  act  of  the  legislature?  If  from  the  former,  how 
is  it  that  it  requires  an  act  of  the  legislature  to  make  this  amendment 
operative,  when  every  other  amendment  can  be  made  without  any  legis- 
lation? Plainly  the  whole  power  is  conferred  by  the  act,  and  the  exer- 
cise of  the  power  is  not  an  amendment  of  the  charter,  because  the  legis- 
lature has  no  jurisdiction  over  amendments.  And  if  it  is  conceded  further 
that  the  legislature  may  make  the  annexation  depend  upon  the  affirma- 
tive vote  of  people  inhabiting  the  territory  proposed  to  be  annexed,  the 
argument  for  the  position  we  take  is  made  stronger,  since  in  that  case 
the  adoption  of  an  amendment  to  a  city  charter  would  be  made  to  depend 
upon  the  votes  of  people  who  are  not  electors  in  the  city,  when  the  con- 
stitution says  voters  on  all  amendments  shall  be  electors  thereof. 

From  these  premises  the  next  logical  step  is,  that  if  the  annexation  of 
territory  to  cities  which  have  adopted  their  own  charters  is  necessarily 
in  amendment  of  those  charters,  there  can  be  no  such  annexation  what- 
ever under  the  constitution,  and  we  should  certainly  be  slow  to  reach 
such  a  conclusion.  But,  in  the  presence  of  a  question  of  so  much  impor- 
tance, we  deem  ourselves  fortunate  in  that  we  are  not  driven  to  any  fine 
arguments  to  uphold  the  power  of  the  legislature  to  deal  with  this  matter 
since  the  plain  letter  of  the  constitution  —  "to  frame  a  charter  for  its 
own  government "•—  is  abundant  warrant  for  doing  so.  It  seems  to  us 
that  the  courts  in  Missouri  and  California  have  overlooked  the  con- 
siderations here  mentioned,  and  that  under  these  constitutional  provisions 
annexation  of  territory  is  not  to  be  regarded  as  an  amendment  to  a  city 
charter. 

It  is  not  altogether  simple,  of  course,  to  follow  the  argument 
of  the  court  by  which  the  proposition  was  sought  to  be  sustained 
that  a  description  of  the  boundaries  of  a  city  was  not  part  of  a 
charter  for  its  own  government.  In  point  of  fact  there  is  perhaps 
no  more  universal  feature  of  city  charters  than  the  provisions  es- 
tablishing municipal  boundaries.  In  practical  result  this  decision 
of  the  Washington  jurisdiction  was  identical  with  that  of  the 
California  cases  upon  this  subject 1  —  that  is,  the  applicableness 
of  a  general  law  governing  the  matter  of  annexation  of  terri- 
tory was  sustained  and  the  power  to  control  this  matter  in 
any  wise  was  denied  to  the  city.  It  would  seem,  however, 
that  the  argument  of  the  California  court  was  in  last  analysis 
more  logical  than  that  of  the  Washington  court.  It  was  de- 

1  Supra,  269,  333  ;  for  Missouri  cases  see  supra,  146. 


410  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

clared  in  the  above  quoted  remarks  that  the  "  legislature  has 
no  jurisdiction  over  amendments."  This  declaration  was,  as  we 
shall  see,  plainly  out  of  harmony  with  most,  if  not  all,  of  the 
decisions  of  the  Washington  court  to  the  effect  that  the  legis- 
lature could  amend  home  rule  charters  by  general  laws. 

Moreover,  the  entire  argument  of  the  court  based  upon  the 
.necessity  of  the  legislature's  delegating  to  some  local  tribunal  the 
power  to  annex  territory  because  of  the  constitutional  require- 
ment of  general  legislation  for  cities,  falls  down  utterly  in  the 
opinion  rendered  by  the  same  court  in  the  case  of  Pacific  American 
Fisheries  v.  Whatcom.1  In  this  case  a  law  which,  without  pro- 
viding for  any  local  action  or  consent,  extended  the  boundaries 
of  every  city  adjacent  to  or  fronting  upon  any  bay,  lake,  sound, 
or  river  to  the  middle  of  such  water  was  held  to  be  a  general  law 
and  as  such  valid  under  the  constitution.  Here  was  certainly 
an  instance  in  which  the  extension  of  municipal  boundaries  was 
effected  directly  by  an  act  of  the  legislature;  and  although  it 
may  be  admitted  that  the  practical  aspects  of  the  subject  of  annexa- 
tion seem  to  require  that  the  legislature  when  restricted  to  the 
enactment  of  general  laws  should  delegate  to  some  local  authority 
the  power  to  initiate  and  complete  the  procedure  for  annexation, 
it  is  nevertheless  manifest  that  it  is  at  least  possible  in  certain 
instances  to  extend  the  boundaries  of  cities  by  direct  action  of  the 
legislature. 

On  the  whole,  it  seems  appropriate  merely  to  reiterate  here  the 
view  already  expressed  elsewhere  ; 2  to  wit,  that  owing  to  the  com- 
plications that  have  naturally  arisen  concerning  this  matter,  it 
would  be  the  part  of  wisdom  for  the  framers  of  home  rule  pro- 
visions to  deal  with  the  subject  specifically,  and  in  the  absence 
of  specification  for  the  legislature  to  enact  a  law  providing  a 
procedure  for  the  annexation  .of  territory  under  which  such  action 
as  may  be  required  of  the  home  rule  city  itself  shall  be  identical 
with  that  laid  down  in  the  constitution  for  the  initiation  and 
adoption  of  charter  amendments. 

1  69  Wash.  291.     1912. 
*  Supra,  146-149,  271. 


HOME  RULE  IN  WASHINGTON  411 

To  what  Extent  may  the  City  regulate  Matters  pertaining  to  the 
Procedure  for  making  Charter  Amendments  ? 

The  home  rule  provision  of  the  Washington  constitution  de- 
clared that  freeholders'  charters  might  be  amended  "by  proposals 
therefor  submitted  by  the  legislative  authority  of  such  city  to  the 
electors  thereof  at  any  general  election  after  notice  of  said  sub- 
mission published  as  above  specified  [that  is,  published  in  two 
daily  newspapers  for  at  least  thirty  days],  and  ratified  by  a  majority 
of  the  qualified  electors  voting  thereon."  The  enabling  act  of 
1890  conferred  power  upon  every  city  framing  its  own  charter  to 
regulate  hi  any  such  charter  matters  relating  to  the  procedure  to 
be  followed  in  the  enactment  of  charter  amendments.  Every 
freeholders'  charter  that  has  been  adopted  by  any  city  in  Wash- 
ington has  contained  some  provisions  on  this  subject.1  Presum- 
ably, of  course,  in  regulating  through  the  medium  of  its  charter 
such  a  matter  as  this,  the  city  would  be  incompetent  to  violate  in 
any  respect  the  brief  constitutional  provision  quoted  above. 

Question  as  to  the  power  of  the  city  in  this  regard  was  directly 
raised  in  the  early  case  of  Wade  v.  Tacoma.2  The  charter  of 
Tacoma  required  that  proposed  amendments  should  be  published 
in  full  "in  the  official  newspaper"  of  the  city  for  thirty  days.  The 
constitution  required  publication  in  two  daily  newspapers.  The 
court  declared  that  while  it  was  probably  true  that  the  notice 
required  by  the  charter  was  amply  sufficient,  yet  the  trouble  was 
that  it  was  not  the  notice  prescribed  by  the  constitution.  The 
charter  provision  was  in  consequence  utterly  void.  No  question 
was  presented  in  this  case  as  to  the  authority  of  the  legislature  to 
confer  upon  cities  the  power  to  regulate  within  their  own  charters 
matters  pertaining  to  the  making  of  amendments  to  the  extent 
that  such  matters  were  not  regulated  by  the  constitution  itself. 

In  the  case  of  State  ex  rel.  Wiesenthal  v.  Denny,3  decided  at 
the  same  term  of  court,  the  validity  of  the  provisions  of  the  first 

^ee,  for  example,  charter  of  Seattle,  1896,  as  amended  to  1911,  Art.  XX; 
of  Spokane,  1910,  Arts.  IX,  XIV;  of  Tacoma,  1909,  Art.  XXII;  of  Everett, 
1912,  Art.  XVI.  2  4  Wash.  85.  1892.  3  4  Wash.  135.  1892. 


412     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

freeholders'  charter  of  Seattle  upon  this  subject  were  also  drawn 
into  question.  The  constitution  required  that  such  amendments 
should  be  ratified  by  a  majority  of  the  electors  voting  thereon. 
The  charter  of  the  city,  among  other  restrictions  placed  upon  the 
procedure  for  enacting  amendments,  required  a  majority  of  the 
electors  voting  at  any  general  election.  It  was  obvious  that  while 
the  charter  did  not  violate  the  constitutional  requirement,  it 
nevertheless  added  to  that  requirement  and  made  the  process  of 
amending  a  charter  more  difficult  of  accomplishment.  On  this 
point  the  court  declared  : 

Just  how  far  this  proposition  could  be  carried  without  crossing  over 
the  line  where  amendments  would  become  practically  impossible  at  once 
occurs  for  reflection.  We  have  already  seen  how,  before  a  proposition 
is  submitted  it  must  pass  by  three-fifths  vote  of  the  council,  be  published, 
pass  again  by  three-fifths,  face  the  mayor's  objections,  be  published  again 
and  then  be  voted  upon  at  an  election,1  where  two-thirds  of  the  voters 
treat  it  with  indifference ;  and  looking  upon  this  as  a  precedent,  it  will  be 
safe  to  say  that  the  freeholders'  charter  of  Seattle  bids  fair  to  take  rank 
among  the  famed  oriental  laws  that  never  could  be  changed.  But  we 
differ  with  the  relator  in  this  matter.  The  framers  of  the  constitution 
went  out  of  the  usual  way  of  making  such  instruments  to  insert  a  pro- 
vision therein  looking  to  the  possible  solution  of  a  perplexing  modern 
problem  —  the  government  of  large  cities.  It  granted  to  certain  cities 
the  right  to  govern  themselves,  subject  only  to  general  laws  of  the  state. 
The  grant  was  made  in  the  shape  of  power  to  enact  a  charter  law  and  to 
amend  it  afterward.  Just  how  far  this  grant  was  independent  of  legis- 
lation we  are  not  called  upon  to  say;  but  it  may  be  safely  said  that 
wherever  in  this  grant  it  is  declared  that  a  thing  may  be  done  in  a  cer- 
tain way,  when  it  comes  to  be  done,  the  doing  it  in  that  way  will  be 
sufficient.  .  .  . 

Under  the  doctrine  of  the  court  as  here  announced  the  power 
of  the  city  to  add  to  the  simple  procedure  laid  down  in  the  con- 
stitution any  requirement  that  would  in  effect  render  the  process 
of  amendment  more  difficult  was  denied.  This  was  tantamount 
to  a  declaration  that  the  city's  competence,  as  conferred  by  the 
enabling  act  to  control  procedure  in  this  regard,  extended,  if  to 
anything,  only  to  the  regulation  of  matters  of  minor  significance. 

1  [All  of  these  procedural  restrictions  were  imposed  by  the  charter  itself.] 


HOME  RULE  IN  WASHINGTON  413 

In  1895  the  Washington  legislature  enacted  a  law  which  required 
that  the  legislative  authority  of  any  city  of  the  first  class  should, 
upon  a  petition  signed  by  twenty-five  per  centum  of  the  voters, 
call  an  election  for  the  choice  of  a  board  of  freeholders  to  draft  a 
charter  and  should  submit  to  the  electors  amendments  proposed  by 
a  similar  petition.  The  constitution  declared  that  "the  legislative 
authority  of  such  city  may  cause  an  election"  of  freeholders,  and 
that  a  freeholders'  charter  once  adopted  "may  be  amended  by 
proposals  therefor  submitted  by  the  legislative  authority  of  such 
city."  It  was  contended  in  Reeves  v.  Anderson  l  that  this  act  of 
the  legislature  as  applied  to  Seattle,  then  operating  under  a  char- 
ter of  its  own  making,  was  unconstitutional  upon  the  following, 
among  other,  grounds :  (1)  that  the  constitution  vested  in  the 
legislative  authority  of  the  city  discretion  as  to  whether  or  not  an 
election  of  freeholders  should  be  called ;  (2)  that  the  right  to  frame 
a  charter  through  the  medium  of  a  board  of  freeholders  was  not  a 
continuing  right  since  the  constitution  pointed  out  the  only  method 
by  which  such  a  charter  might  be  amended;  and  (3)  that  the 
constitutional  provision  on  this  subject  was  self -executing  and 
therefore  beyond  the  power  of  the  legislature  to  control  in  any 
manner.  Delivering  a  negative  answer  to  each  of  these  conten- 
tions, the  court  declared : 

Third.  The  argument  of  the  learned  counsel  for  appellants  in  support 
of  the  third  objection  to  the  constitutionality  of  the  law  under  considera- 
tion is  based  very  largely  upon  the  use  of  the  word  "may"  in  the  consti- 
tution, as  relating  to  the  duty  of  the  city  council.  The  argument  amounts 
to  this,  that,  notwithstanding  under  the  constitution  the  power  to  frame 
a  charter  for  their  own  government  is  lodged  in  the  voters  of  a  given  city, 
still  it  cannot  be  exercised  unless  permission  to  do  so  is  given  by  the  coun- 
cil, which  may  exercise  its  own  pleasure  in  granting  or  withholding  the 
opportunity  to  vote  for  the  election  of  freeholders  to  prepare  a  charter. 
We  cannot  accede  to  this  contention.  To  admit  of  such  a  construction 
is  to  unreasonably  abridge,  if  indeed  it  might  not  even  prevent,  the  exer- 
cise of  the  power  thus  conferred  and  subject  it  always  to  the  mere  caprice 
or  arbitrary  determination  of  the  council,  something  which  surely  was  not 
intended  by  the  framers  of  the  constitution.  We  think  the  powers  con- 
ferred upon  the  council  by  the  section  are  merely  ministerial  and  not 

i  13  Wash.  17.     1895. 


414     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

legislative,  and  that  the  object  of  the  act  of  March  4  was  to  confer  on 
voters  of  cities  of  the  first  class  an  opportunity  to  exercise  the  right  con- 
ferred upon  them  by  the  constitution,  by  requiring  the  council  to  perform 
what,  under  the  circumstances  of  this  case,  became  the  plain  duty  of  pro- 
viding for  the  election  and  giving  the  notice  thereof  required  by  law. 
Neither  the  constitution  nor  the  act  in  question  makes  it  compulsory 
upon  the  voters  to  adopt  a  new  charter,  but  this  act  affords  them  an 
opportunity  for  so  doing  without  regard  to  the  will  of  the  council,  and  in 
making  such  provision  we  think  the  legislature  did  not  transcend  its  con- 
stitutional functions. 

Fourth.  We  think  that  the  power  to  frame  a  charter  for  themselves 
is  a  continuing  right  vested  in  the  voters  of  the  city,  and  that  it  does  not 
become  exhausted  because  once  exercised.  We  agree  with  counsel  for 
respondent  that  the  object  of  the  constitutional  provision  is  to  confer 
upon  the  large  cities  of  the  state  the  power  of  local  self-government  (sub- 
ject, as  already  stated,  to  general  laws)  and  that  this  right  to  "home  rule 
is  not  limited  at  all  in  point  of  time." 

Fifth.  Nor  do  we  think  the  contention  that  the  constitutional  pro- 
vision is  self-executing,  and  that  legislative  interference  is  unauthorized 
can  be  upheld.  Certainly  we  should  hesitate  before  declaring  a  solemn 
act  of  the  legislature  invalid  upon  any  such  ground.  The  act,  as  we  have 
seen,  is  in  harmony  with  the  spirit  of  the  constitution,  and  its  object  is 
to  further  the  exercise  of  a  constitutional  right  and  make  such  right  avail- 
able. A  constitutional  provision  is  said  to  be  self -executing  "when  it 
merely  indicates  principles,  without  laying  down  rules  by  means  of  which 
those  principles  may  be  given  the  force  of  law."  Cooley,  Constitutional 
Limitations,  p.  100. 

The  opinion  as  thus  expressed  may  be  set  down  as  the  first  of  a 
series  of  liberal  opinions  delivered  by  the  Washington  court  on 
the  subject  of  home  rule  procedure,  although  it  may  be  remarked 
parenthetically  that  matters  pertaining  to  procedure  have  been 
practically  the  sole  objective  of  that  court's  liberality.  Moreover, 
so  far  as  the  liberality  of  this  particular  opinion  was  concerned,  it 
was  extended  rather  to  the  legislature  than  to  the  city.  It  was 
the  legislature  that  might  ordain  a  policy  that  would  more  ade- 
quately effectuate  the  provisions  of  the  constitution.  Presum- 
ably, under  the  doctrine  of  the  Denny  case,  the  city  would  not 
have  been  competent  simply  upon  its  own  initiative  to  incorporate 
the  principles  of  this  statute  into  its  own  charter ;  for  it  is  not 
easy  to  see  how  the  right  of  the  city  to  facilitate  the  amendment 


HOME  RULE  IN  WASHINGTON  415 

or  revision  of  its  charter  could  be  sustained  when  its  right  to  sur- 
round the  process  of  amendment  by  additional  restrictions  was 
denied.  It  would  seem  that  the  right  could  be  sustained  in  either 
case  only  upon  the  comprehensive  ground  that  the  constitution  or 
the  enabling  act  had  conferred  upon  the  city  the  power  to  regulate 
in  its  charter  the  matter  of  the  future  revision  or  amendment  of 
such  charter,  in  a  manner  of  course  that  would  not  actually  violate 
the  provisions  of  the  constitution  upon  this  subject.  The  Denny 
case  had  clearly  implied  that,  even  under  a  grant  of  authority  from 
the  legislature,  the  city  could  not  exercise  the  power  of  regulating 
in  any  material  respect  the  method  by  which  its  charter  might  be 
amended,  because  when  the  constitution  "  declared  that  a  thing 
may  be  done  in  a  certain  way,  when  it  comes  to  be  done,  the  doing 
of  it  in  that  way  will  be  sufficient." 

The  Denny  case  was  expressly  declared  in  the  Reeves  case  to  be 
not  inconsistent  with  the  opinion  there  expressed;  but  seventeen 
years  later,  as  we  shall  see,  when  the  court  was  confronted  with  a 
charter  provision  that  liberalized  rather  than  restricted  the  pro- 
cess of  amending  a  freeholders'  charter,  and  when  it  was  seen  that 
certain  views  voiced  in  the  earlier  case  stood  in  the  way  of  the 
judgment  which  the  court  desired  to  reach,  it  was  reluctantly 
admitted  that  the  two  cases  could  not  stand  together.1 

While  the  judgment  of  the  court  in  the  Reeves  case  was  unques- 
tionably of  advantage  to  the  cause  of  genuine  home  rule,  and  as 
such  should  doubtless  be  commended,  yet  the  construction  that 
was  placed  upon  the  phraseology  of  the  constitution  was  not  so 
obvious  as  to  close  the  door  upon  possible  criticism.  It  was  not 
declared  —  as  it  certainly  might  have  been  —  that  the  term  "leg- 
islative authority"  as  used  in  the  constitution  could  easily  be 
construed  to  include  direct  action  by  the  voters  and  therefore  to 
justify  the  causing  of  an  election  of  freeholders  or  the  submission 
of  proposed  amendments  by  the  method  of  petition.  In  other 
words,  since  this  term  was  not  precisely  denned  by  the  constitu- 
tion, it  would  seem  that  the  court  might  have  held  that  it  was 
competent  for  the  legislature,  and  possibly  also  for  the  city,  to 

1  Infra,  423. 


416  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

give  it  any  reasonable  definition,  and  that  the  statute  in  question 
providing  for  the  initiation  of  revision  or  amendment  by  a  petition 
of  voters  simply  operated  to  include  the  voters  themselves  within 
the  meaning  of  the  term  "  legislative  authority.". 

Such,  however,  was  not  the  argument  employed.  On  the  con- 
trary, the  opinion  turned  in  effect  upon  the  view  that  the  right  to 
adopt  and  amend  a  charter  was  conferred  upon  the  "city,"  that 
the  "council"  (which  the  court  evidently  regarded  as  the  only 
"legislative  authority"  intended  by  the  constitution1)  was  not 
the  "city,"  and  that  in  consequence  it  was  not  contemplated  that 
the  exercise  of  this  power  should  be  subject  to  the  "mere  caprice 
or  arbitrary  determination  of  the  council."  The  powers  of  the 
council  were  "ministerial  and  not  legislative." 

Now  it  is  patent  that  a  "city"  cannot  act  except  through  some 
duly  constituted  organ  of  its  government.  The  home  rule  pro- 
vision of  the  California  constitution,  after  which  that  of  Wash- 
ington was  modeled,  declared  somewhat  vaguely,  as  has  been  seen,2 
that  the  city  might  "cause"  an  election  of  freeholders.  The 
framers  of  the  Washington  provision  had  evidently  noted  the 
vagueness  of  this  declaration.  In  their  own  provision  they  sub- 
stituted at  least  a  degree  of  definiteness  by  expressly  empowering 
the  "legislative  authority"  of  the  city  to  cause  such  an  election. 
This  was  natural.  The  legislative  authority  —  the  city  council 
if  you  choose  —  was  customarily  the  primary  policy-determining 
body  of  the  city.  The  initiation  of  policies  by  direct  action  of  the 
voters  was  not  a  commonly  accepted  institution  of  American  poli- 
tics in  1889.  It  was  in  the  early  stages  of  propagandism.  It 
appears  to  have  been  resorted  to  in  the  statute  of  1895  at  the 
specific  behest  of  Seattle  only  because  an  intrenched  city  council 
was  resisting  an  active  agitation  for  charter  reform.  The  passage 
of  the  law  was  an  ingenious  stroke  of  practical  politics.  It  is 
impossible,  however,  candidly  to  read  the  home  rule  provision  of 
the  Washington  constitution  of  1889  without  reaching  the  con- 
clusion that  the  framers  of  that  instrument  definitely  intended 
that  the  "legislative  authority"  (at  that  date  the  council  or  the 

1  Infra,  419.  *  Supra,  202,  259  ff. 


HOME  RULE  IN  WASHINGTON  417 

mayor  and  council,  although  in  the  light  of  the  subsequent  devel- 
opment of  the  principle  of  direct  legislation  such  authority  could 
certainly  have  been  denned  so  as  to  include  the  voters)  should  be 
the  specific  organ  of  government  endowed  with  power  to  represent, 
if  not  indeed  to  be,  the  "city"  for  this  purpose.  To  assert  that 
the  declaration  of  the  constitution  to  the  effect  that  the  legislative 
authority  of  the  city  "may  cause"  an  election  of  freeholders, 
which  declaration  named  neither  time,  conditions,  nor  circum- 
stances, was  the  grant  of  a  "merely  ministerial"  power,  seems 
almost  grotesque. 

Generally  speaking,  a  ministerial  power  is  nothing  more  than 
an  obligation  which  may  be  compelled  when  the  legally  prescribed 
circumstances  for  the  exercise  of  such  power  arise.  Generally 
speaking  also,  a  ministerial  power  cannot  be  exercised  until  such 
circumstances  have  arisen.  But  there  were  here  no  circumstances 
prescribed.  It  is  difficult  to  comprehend  how  the  legislative 
authority  of  the  city  would  know  when  it  was  called  upon  to  ex- 
ercise this  ministerial  power  unless,  forsooth,  the  court  meant  to 
declare  that  the  power  could  not  be  exercised  at  all  until  its  min- 
isterial character  had  been  effectuated  by  the  statutory  impo- 
sition of  conditions  for  its  exercise.  The  court  could  only  have 
stultified  itself  by  such  a  holding  in  view  of  the  fact  that  Seattle 
(the  legal  status  of  whose  charter  officers  was  not  questioned, 
although  they  were  now  parties  before  the  court  in  their  official 
capacity)  was  operating  under  a  freeholders'  charter  initiated  by 
the  old  council  of  the  city  before  any  law  imposing  such  conditions 
had  been  enacted.  Surely  the  ministerial  power  of  this  former 
council  in  causing  the  election  of  a  board  of  freeholders  in  1890  had 
been  exercised  of  its  own  accord  and  therefore  upon  its  own  dis- 
cretion. There  certainly  existed  at  that  time  no  legal  means  by 
which  the  council  could  have  been  compelled  to  call  such  an 
election. 

The  further  point  of  criticism  may  be  made  that  ever  since  the 
decision  of  the  Reeves  case  the  council  of  every  home  rule  city  of 
Washington  has  enjoyed  concurrently  with  petitioners  the  power, 
subject  to  such  charter  restrictions  as  may  be  valid,  to  initiate  at 


418     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

its  own  discretion  either  an  election  of  freeholders  or  a  charter 
amendment.  If  these  powers  be  merely  ministerial,  it  would  seem 
that  urgent  necessity  exists  for  a  revision  of  the  legal  definition  of 
that  term. 

It  will  be  recalled  that  in  California  it  was  held  in  Blanchard  v. 
Hartwell 1  that  under  the  original  provisions  of  the  constitution 
in  that  state  the  power  to  frame  a  charter  was  not  a  continuing 
power,  this  view  being  premised  chiefly  upon  the  ground  that  the 
constitution  provided  a  method  by  which  a  freeholders'  charter 
might  be  amended  and  that  this  method  should  be  construed  to  be 
exclusive.  The  only  difference  in  this  respect  between  the  Cali- 
fornia and  the  Washington  provisions  was  that  the  constitution 
of  the  former  permitted  amendments  to  be  made  only  at  intervals 
of  two  years  while  the  latter  contained  no  such  limitation.  The 
California  court  held  that  this  would  be  a  "  fatuous  limitation  .  .  . 
if  the  policy  thus  clearly  indicated  could  be  defeated  by  adopting 
a  new  charter  once  in  sixty  days  by  a  mere  majority  vote"  —  a 
somewhat  absurd  speculation  it  may  be  noted  incidentally,  unless 
the  legislature,  which  in  that  state  was  required  to  ratify  all 
charters,  could  be  found  in  session  every  sixty  days.  It  may  be 
that  this  difference  as  to  a  time  limitation  in  the  matter  of  amend- 
ments constituted  a  material  distinction  between  the  California  and 
the  Washington  provision ;  but  as  a  final  determinant  of  whether 
the  right  to  frame  a  charter  was  or  was  not  a  continuing  right,  its 
importance  does  appear  to  have  been  somewhat  overstrained. 

The  truth  of  the  matter  is  that  the  California  court  had  no 
great  respect  for  the  opinion  of  the  Washington  court  as  set  down 
in  the  Reeves  case.  Its  attention  was  drawn  to  this  case  and  a 
somewhat  futile  effort  was  made  to  distinguish  the  constitutional 
provisions  upon  this  subject.  In  Washington,  a  freeholders' 
charter  was  like  such  a  charter  in  California  "only  in  name!" 
There  the  legislature  could  amend  such  charters.  And  why  not, 
pray,  in  California?  Before  the  "municipal  affairs"  amendment 
of  1896  the  wording  of  the  two  constitutions  in  respect  to  the 
control  of  general  laws  was  identical,  and  the  interpretation  put 

1 131  Cal.  263  (1900) ;  supra,  221. 


HOME  RULE   IN  WASHINGTON  419 

upon  this  wording  by  the  courts  of  the  two  jurisdictions  was  pre- 
cisely the  same.  Even  after  the  amendment  of  1896  freeholders' 
charters  in  California  could  be  amended  by  general  laws  except 
as  to  municipal  affairs.  Were  matters  pertaining  to  the  election 
of  freeholders  municipal  affairs?  The  California  court  was  ap- 
parently happy  to  avoid  upon  a  technicality  the  necessity  of 
declaring  itself  upon  this  point.1 

A  further  distinction  was  based  upon  the  fact  that  in  Washington 
"  a  mode  was  provided  by  which  the  council  could  be  compelled  to 
call  an  election  upon  a  mere  petition,"  while  in  California  "the 
movement  can  only  be  initiated  by  the  city  council  —  the  legisla- 
tive body  of  the  city"  —  since  it  was  provided  that  "the  city  shall 
cause  the  election  to  be  held"  and  "the  city  can  act  only  through 
its  legislature."  This  being  the  case,  it  was  "at  least  doubtful" 
if  a  law  vesting  this  power  in  any  other  authority,  such  as  the  voters 
themselves,  "could  be  enacted."  As  to  all  this,  it  need  only  be 
remarked  once  more  that  the  Washington  provision  upon  this 
point  was  far  more  precise  than  that  of  California.  The  supreme 
court  of  the  latter  state  may  have  wholly  dissented  from  the  view 
that  such  a  law  as  that  sustained  in  the  Reeves  case  was  valid 
under  a  constitution  that  specifically  vested  the  initiatory  power 
in  the  "legislative  authority"  of  the  city;  but  the  validity  of  this 
particular  law  had  nothing  whatever  to  do  with  whether  the  home 
rule  right  was  or  was  not  a  continuing  right.  Certainly  the  Cali- 
fornia argument  for  a  strict  construction  upon  this  ground  was 
rather  absurd  when  it  is  considered  that  this  term  "legislative 
authority"  was  written  into  the  Washington  constitution  by  its 
framers  and  into  the  California  constitution  by  the  court  itself. 

On  the  whole,  it  seems  impossible  but  to  declare  that  the  de- 
cisions of  these  two  cases  were  very  nearly,  if  not  wholly,  in  irrec- 
oncilable conflict.  The  endeavor  of  the  California  court  to  dis- 
tinguish the  Reeves  case  without  simply  repudiating  its  doctrine 
was  quite  as  unsuccessful  in  logic  as  was  the  effort  of  the  Missouri 
court,  when  the  same  point  was  at  bar  in  that  state,  to  distinguish 
the  Blanchard  case.2 

1  Fragley  v.  Phelan,  126  Cal.  383  (1899) ;  supra,  262  ff.  2  Supra,  198. 


420     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  people  of  Spokane  have  had  especial  difficulty  through  a 
series  of  years  in  forcing  their  recalcitrant  councils  to  act  in  the  mat- 
ter of  proposed  amendments  or  revision  of  the  local  charter.  In 
Hindman  v.  Boyd  1  mandamus  was  sought  to  compel  the  council 
to  submit  at  the  next  general  election  an  amendment  that  had  been 
proposed  by  petition  in  accordance  with  the  requirements  of  an 
act  of  1903. 2  The  contention  was  made  that  the  submission  of 
the  amendment  would  entail  an  expenditure  of  municipal  funds 
and  that  the  constitution,  while  it  permitted  the  legislature  to 
authorize  the  corporate  authorities  to  levy  taxes  for  corporate  pur- 
poses, forbade  the  legislature  to  impose  taxes  ?or  such  purposes 
directly.3  The  contention  was  denied  largely  on  " practical" 
grounds,  it  being  asserted  that  the  constitutional  provision  relied 
upon  related  to  "  taxes  concerning  ordinary  corporate  affairs," 
and  that  "to  hold  that  it  relates  also  to  the  expense  of  an  amend- 
ment to  the  organic  law  of  the  city  would  place  it  within  the  power 
of  the  corporate  authorities  to  perpetually  prevent  the  people 
from  exercising  a  fundamental  power."  It  was  evident  that  the 
court,  having  read  the  term  "legislative  authority"  in  part  at 
least  out  of  the  provision  of  the  constitution  granting  the  right  to 
frame  a  charter,  was  now  reading  the  term  "corporate  purpose"  in 
a  manner  to  suit  the  exigencies  of  a  situation  in  which  the  cor- 
porate authorities  were  playing  the  role  of  obstructionists. 

In  October,  1909  the  incumbent  mayor  of  Spokane  launched  a 
movement  for  a  charter  establishing  the  commission  type  of 
government  by  issuing  an  open  letter  to  the  people  and  appointing 
an  unofficial  citizens'  committee  to  investigate  and  report  an  out- 
line charter  plan.  This  report,  upon  its  presentation  to  the  mayor, 
was  transmitted  to  the  council  with  the  recommendation  that  an 
election  of  freeholders  be  called  to  frame  a  charter,  presumably 
along  the  lines  proposed  by  the  citizens'  committee.  The  council 

1  42  Wash.  17  (1906) ;  infra,  438,  449.  *  Laws  of  Wash.,  1903,  ch.  186. 

3  Art.  XI,  sec.  12:  "The  legislature  shall  have  no  power  to  impose  taxes  upon 
counties,  cities,  towns  or  other  municipal  corporations,  or  upon  the  inhabitants  or 
pr6perty  thereof,  for  county,  city,  town,  or  other  municipal  purposes,  but  may  by 
general  laws  vest  in  the  corporate  authorities  thereof  the  power  to  assess  and  collect 
taxes  for  such  purposes."  See  supra,  52. 


HOME  RULE  IN  WASHINGTON  421 

was  obdurate.  A  petition  of  voters  was  then  filed,  in  accordance 
with  the  provisions  of  the  general  law,  requesting  the  council  to 
cause  the  election  in  question  to  be  held.  The  law  was  not  free 
from  doubts  as  to  whether  the  council  was  vested  with  discretion 
in  fixing  the  date  for  the  election  demanded.1  The  council,  acting 
upon  the  assumption  of  its  discretionary  competence,  provided 
that  the  election  should  be  held  at  the  next  general  city  election, 
which  was  scheduled  to  take  place  nearly  a  year  later.  The  court 
declared  in  the  case  of  the  State  ex  rel.  Lambert  v.  Superior  Court 2 
that  the  "  legislature  did  not  intend  to  vest  an  absolute  discretion 
in  the  city  council  in  this  matter,"  but  that  "the  elections  provided 
for  must  be  held  within  a  reasonable  time,  and  may  be  general,  if 
a  general  city  election  is  to  be  held  within  a  reasonable  time  there- 
after ;  but  otherwise,  they  must  be  special." 

The  decision  of  this  case,  involving  as  it  did  merely  a  question  of 
statutory  construction,  is  of  interest  in  connection  with  our  study 
here  only  as  it  illustrates  the  liberal  attitude  which  the  Washington 
court  has  shown  wherever  an  issue  has  pertained  solely  to  some 
matter  of  home  rule  procedure.  A  peremptory  writ  of  mandamus 
was  granted  commanding  the  city  council  to  call  a  special  election 
for  the  choice  of  freeholders.  This  election  was  held  on  September 
27,  1910,  and  a  charter  drafted  by  the  elected  board  was  adopted 
December  28,  1910.  The  validity  of  this  charter,  providing  a 
commission  form  of  government,  was  attacked  upon  several 
grounds  but  was,  as  we  shall  have  occasion  to  note  in  a  later  con- 
nection, sustained  by  the  supreme  court.3 

The  troubles  of  Spokane  in  the  matter  of  changing  its  own  charter 
were  again  before  the  court  in  the  case  of  the  State  ex  rel.  Hindley 
v.  Superior  Court 4  where  the  specific  question  presented  concerned 
once  more  the  power  of  the  legislative  authority  of  the  city  in 
respect  to  amendments.  The  constitutional,  statutory,  and  char- 
ter provisions  involved,  which  are  not  clearly  set  forth  in  the  report 
of  the  case,  were  in  fact  these : 

1  Rem.  &  Bal.  Code,  sees.  7498-7502.  2  59  Wash.  670.     1910. 

3  Walker  v.  Spokane,  62  Wash.  312  (1911) ;   infra,  452. 

4  70  Wash.  352.     1912. 


422  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

(1)  While  the  constitution  expressly  permitted  the  election  of  a 
board  of  freeholders  or  the  submission  of  a  charter  at  either  a 
general  or  a  special  election,  it  apparently  required  that  proposals 
for  amendment  should  be  submitted  at  a  general  election.1 

(2)  A  statute  of  1903  (the  same  statute  that  was  under  review 
in  Hindman  v.  Boyd  but  not  in  the  Lambert  case)  required  the 
city  council  upon  petition  of  fifteen  per  centum  of  the  voters,  to 
submit  any  proposed  amendment  "at  the  next  regular  municipal 
election."     This  statute  was  evidently  drafted  upon  the  assump- 
tion that  the  constitution  positively  required  the  submission  of 
amendments  only  at  a  general  election. 

(3)  The  charter  of  Spokane,  adopted  in  1910,  declared  as  fol- 
lows :  "This  charter  may  be  amended  by  a  majority  vote  on  such 
amendments.     The  provisions  of  this  charter,  with  respect  to 
submission  of  legislation  to  popular  vote  by  the  initiative,  or  by 
the  council  of  its  own  motion,  shall  apply  to  and  include  the  pro- 
posal, submission,  and  adoption  of  amendments." 2    The  initiative 
and  referendum  provisions  of  the  charter  to  which  reference  was 
thus  made  required  the  submission  of  a  proposal  presented  by 
petition  at  a  special  election  unless  a  general  election  was  "to  be 
held  within  60  days  after  the  filing  of  the  petition."  3 

In  1912  mandamus  was  sought  to  compel  the  commissioners 
(the  city  council)  to  submit  at  a  special  election  certain  charter 
amendments  which  had  been  proposed  by  petition.  The  commis- 
sioners refused  on  the  ground  that  both  the  constitution  and  the 
statute  required  submission  only  at  a  general  election.  The  sole 
authority  for  submission  at  a  special  election  was  the  authority 
of  the  local  charter.  Referring  to  the  Denny  case,  where  it  was 
remarked  in  the  course  of  the  opinion  that  general  elections  had 
been  selected  by  the  framers  of  the  constitution  as  the  time  for 

1  Supra,  396.  The  provision  was  in  fact  ambiguous ;  for  while  it  was  declared, 
following  the  mention  of  elections  for  the  choice  of  freeholders  and  the  submission 
of  charters,  that  "all  elections  in  this  section  .  .  .  may  be  general  or  special  elec- 
tions," it  was  declared  in  the  succeeding  sentence  of  the  same  section  that  proposals 
for  amendment  might  be  submitted  at  "any  general  election."  Whether  the  word 
"general"  was  here  used  by  carelessness  or  was  designed  to  create  an  exception 
does  not  appear.  2  Sec.  125.  3  Sec.  82. 


HOME  RULE  IN   WASHINGTON  423 

the  submission  of  charter  amendments  in  order  that  there  might 
be  a  " certain  stability"  about  freeholders'  charters  and  an  avoid- 
ance of  the  "vice  of  non-attention  to  special  elections,"  the 
court  -declared  as  follows  : 

This  expression  was  made  at  a  time  when  amendments  could  be  pro- 
posed only  by  the  council,  the  then  "legislative  authority."  The  theory 
that  charter  amendments  can  be  proposed  only  by  the  commissioners  is 
proposed  in  relators'  briefs,  but  is  now  abandoned.  However  logical  the 
argument  in  the  Denny  case  may  be,  the  electorate  of  the  city  of  Spokane 
have  seen  fit  to  abandon  the  theory  of  representative  government,  and 
have  provided  for  the  initiation  of  amendments  at  any  time,  and  that  a 
vote  thereon  shall  be  had  within  thirty  days  after  their  proposal.  The 
construction  put  upon  the  constitution  in  the  Denny  case  that  an  elec- 
tion upon  charter  amendments  must  be  held  at  a  general  election,  is  con- 
sistent so  long  as  it  applies  to  the  former  methods  of  legislation ;  but  the 
word  "may"  should  not  be  given  that  meaning  when  the  people  are  act- 
ing in  their  sovereign  capacity.  .  .  .  Although  not  directly  raised,  the 
principle  was  discussed,  and  we  think  decided,  in  State  ex  rel.  Lambert  v. 
Superior  Court,  59  Wash.  670,  110  Pac.  622.  .  .  . 

While  the  court  said  in  Reeves  v.  Anderson,  13  Wash.  17,  42  Pac.  625, 
that  the  case  of  State  ex  rel.  Wiesenthal  v.  Denny,  supra,  had  been  reex- 
amined,  and  that  it  did  not  militate  against  its  then  holding,  if  the  force 
of  law  be  given  to  that  part  of  the  Denny  decision  above  quoted,  the  two 
cases  nevertheless  seem  to  be  in  conflict.  Only  by  rejecting  it  as  dictum 
or  a  statement  made  arguendo  can  the  two  decisions  be  harmonized.  In 
the  Reeves  case,  it  was  argued  upon  the  authority  of  the  Denny  case  that 
"with  reference  to  the  time,  mode  and  manner  of  changing  a  charter,  the 
course  to  be  followed  is  a  mandate,  but  as  to  the  question  as  to  whether 
the  city  will  avail  itself  of  the  provision  of  the  constitution  (art.  11,  sec. 
10)  to  frame  a  charter,  it  is  permissive.  ..." 

Recurring  now  to  our  premise  that  the  words  "consistent  with"  mean 
"not  hostile  to,"  and  considering  the  spirit  of  the  constitution,  that  is, 
to  grant  the  fullest  measure  of  self-government  to  cities  of  the  first  class, 
subject  to  the  general  laws,  it  would  result  in  a  contradiction  of  terms  if 
we  were  to  hold  that,  although  the  manner  of  proposing  amendments  was 
in  strict  harmony  with  the  intent  of  the  constitution  to  insure  home  rule 
to  cities,  the  charter  was  nevertheless  hostile  to  the  constitution  in  such 
degree  that  its  remedial  processes  are  dependent  upon  the  discretion  of 
the  commissioners  and  might  thus  be  indefinitely  postponed. 

This  is  the  last  word  in  Washington  upon  the  subject  of  the 
power  of  a  home  rule  city  to  regulate  matters  pertaining  to  the 


424  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

revision  and  amendment  of  its  own  charter.  It  must  be  taken  to 
have  expressly  overruled  the  Denny  case,  although  it  must  be 
borne  in  mind  that  this  first  case  involved  charter  restriction  upon 
the  exercise  of  home  rule  powers,  while  this  last  case  involved 
charter  facilitation  of  such  exercise  —  a  difference  which  was  not, 
however,  specifically  adverted  to.  It  must  be  taken  also  to  mean 
that  the  home  rule  city  is  competent  to  regulate  such  matters  by 
charter  provisions  to  a  considerable  degree  —  in  fact  to  any  degree 
that  it  chooses,  so  far  as  the  constitution  is  concerned,  except  that 
adequate  notice  l  must  be  given,  publication  must  be  made  spe- 
cifically as  required  "in  two  daily  newspapers  ...  for  at  least 
thirty  days,"  2  and  presumably  some  sort  of  popular  ratification 
must  be  had.3  Presumably  also,  on  the  other  hand,  under  the 
general  doctrine  which,  as  we  shall  see,  has  been  consistently  applied 
in  Washington  to  determine  the  supremacy  of  general  laws  over 
charter  provisions,  the  legislature  could,  if  it  cared  to  do  so,  occupy 
the  entire  field  of  regulation  of  this  matter  and  prohibit  charter 
provisions  upon  the  subject.  The  legislature  has  not  elected  to 
do  this,  and  as  the  law  now  stands  the  home  rule  city  in  Washington 
enjoys  a  fairly  large  competence  to  control  by  charter  provisions 
the  procedure  under  which  a  revision  or  amendment  of  its  char- 
ter may  be  effected. 

It  may  be  noted  in  conclusion  that  all  of  the  existing  freeholders' 
charters  of  Washington  contain  some  provisions  upon  this  sub- 
ject; 4  and  in  one  instance  at  least  the  provisions  are  preeminently 
restrictive  in  character.  Thus  the  charter  of  Tacoma  (1909)  pre- 
scribes that  the  action  of  the  legislative  body  shall  be  by  resolu- 

1  The  constitution  does  not  specify  the  kind  of  notice  that  must  be  given  "in  all 
election  districts  of  the  city."  In  State  ex  rel.  Mullen  v.  Doherty,  16  Wash.  382 
(1897),  it  was  held  that  amendments  adopted  in  Tacoma  without  being  heralded 
by  the  particular  kind  of  notice  prescribed  by  the  enabling  act  and  by  the  municipal 
ordinance  governing  the  subject  were  not  on  that  account  void.  This  decision  waa 
reached  by  applying  the  well-known  rule  that  "where  the  great  body  of  electors  have 
actual  notice  of  the  time  and  place  of  holding  the  election  and  of  the  questions  sub- 
mitted, this  is  sufficient."  2  Supra,  411. 

3  If  the  Reeves  case  is  overruled,  the  city  may  doubtless  now  prescribe  ratification 
by  a  majority  of  those  voting  at  the  election  although  the  constitution  declares  for  a 
majority  "voting  thereon."  *  Supra,  411,  note  1. 


HOME  RULE  IN  WASHINGTON  425 

tion ;  that  the  proposed  amendments  shall  be  published  in  two 
daily  newspapers  for  thirty  days,  that  thereafter  the  council  shall 
take  a  vote  upon  the  proposal,  and  that  it  shall  not  be  submit- 
ted to  the  voters  unless  four  of  the  five  members  of  the  council 
vote  in  favor  of  the  same.1  It  would  seem  that  under  the  doctrine 
of  the  Denny  case,  now  overruled  in  part  at  least,  such  a  pro- 
vision as  this,  which  certainly  renders  the  process  of  amendment 
difficult,  would,  if  questioned  before  the  courts,  be  declared  in- 
valid. It  does  not  appear,  however,  that  any  contest  has  arisen 
concerning  the  validity  of  the  provision. 

To  what  Extent  may  the  City  control  Matters  pertaining  to 

Elections? 

Section  six  of  the  enabling  act  of  1890  "granted"  to  home  rule 
cities  the  authority  to  prescribe  the  times  at  which,  manner  in 
which,  and  terms  for  which  the  mayor  and  members  of  the  council 
might  be  elected.  It  is  doubtless  due  to  this  specific  grant  of  power 
^that  the  Washington  books  do  not  hold  many  cases  involving 
questions  as  to  the  power  of  cities  to  regulate  matters  pertaining  to 
elections.  It  is  simply  a  fact  that  the  freeholders'  charters  of  that 
state  appear  to  regulate  municipal  elections  to  a  considerable  ex- 
tent 2  and  adopt  state  laws  to  cover  the  omissions  of  the  charter.3 
Moreover,  many  of  the  newer  devices  of  election  machinery 
have  been  incorporated  into  these  charters  and  have  gone  without 
being  questioned  before  the  courts. 

In  two  cases,  however,  contest  has  been  raised  over  the  election 
provisions  of  freeholders'  charters.  The  first  home  rule  charter 
of  Tacoma  conferred  upon  the  superior  court  of  the  county  in 
which  the  city  was  located  authority  to  entertain  a  proceeding  to 

1  Art.  XXII. 

2  See,  for  example,  Seattle  charter  of  1896,  as  amended  to  1911,  Art.  XVIII; 
Spokane  charter  of  1910,  Art.  VII;  Tacoma  charter  of    1909,  Art.  XV;  Everett 
charter  of  1912,  Art.  IX. 

3  Seattle  charter  of  1896,  as  amended  to  1911,  Art.   XVIII,  sec.  1,  subdiv.  A, 
par.  7  ;  Spokane  charter  of  1910,  sec.  66  ;  Tacoma  charter  of  1909,  sec.  204  ;  Everett 
charter  of  1912,  sec.  78. 


426  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

contest  the  election  of  any  city  officer.  In  State  ex  rel.  Fawcett 
v.  Superior  Court,1  although  it  was  held  that  there  existed  "no 
statutory  provision  for  contesting  the  election  of  a  municipal 
officer,"  a  denial  of  the  competence  of  the  city  to  provide  for  this 
matter  was  sustained  by  the  following  astounding  argument : 

We  must  not  lose  sight  of  the  elementary  proposition  that  municipal 
corporations  have  only  the  powers  which  are  especially  conferred  upon 
them  by  the  legislature,  or  such  other  powers  as  by  necessary  implication 
flow  therefrom.  The  power  to  provide  a  tribunal  and  clothe  it  with 
authority  to  contest  election  cases  was  not  specially  conferred  by  the  legis- 
lature, nor  do  we  think  it  was  necessarily  implied,  or  implied  at  all,  by 
the  constitution,  or  by  any  act  of  the  legislature  to  which  our  attention 
has  been  called.  .  .  . 

The  authority  conferred  upon  superior  courts,  who  are  state  officers,  [sic] 
even  conceding  that  the  state  could  create  a  tribunal  clothed  with  'the 
power  claimed  for  the  court  in  this  case,  must  be  created  by  a  higher 
authority  than  the  local  legislature  of  the  city.  The  jurisdiction  and 
duties  of  the  superior  court,  and  the  methods  prescribed  by  which  the 
court  shall  exercise  its  jurisdiction,  must  be  conferred  by  the  constitution 
and  by  legislative  authority.  .  .  . 

It  must  be  conceded  that,  inasmuch  as  there  is  no  manner  prescribed 
by  the  legislature  for  trying  contested  cases  in  the  case  of  municipal* 
officers,  the  manner  must  be  prescribed,  if  tried  at  all,  by  a  municipality. 
Again,  to  show  the  fallacy  of  this  proposition,  if  one  city  which  has  20,000 
inhabitants  can  create  a  tribunal  and  exact  modes  and  methods  for  the 
trial  of  contested  election  cases,  the  other  cities  of  the  same  class  in  the 
state  must  be  conceded  the  same  powers,  and  the  result  would  be,  even 
conceding  that  the  power  was  conferred  in  all  cases  upon  the  superior 
judge,  that  a  mode  or  method  prescribed  by  one  city  would  be  different 
from  the  mode  and  method  prescribed  by  the  other  cities,  and  there  would 
be  presented  the  unheard-of  spectacle  of  one  officer  having  his  case  tried 
under  different  form,  modes,  methods,  and  practice  from  those  applied 
to  another  officer  in  the  same  kind  of  a  case  in  another  part  of  the  state. 
We  think,  plainly,  that  the  superior  court  had  no  jurisdiction  to  enter- 
tain this  proceeding,  and  the  permanent  writ  of  prohibition  will  issue  as 
prayed  for. 

Here  was  an  almost  inexplicable  opinion.     No  state  law  was 
alleged  to  be  in  conflict  with  the  charter  provision.     A  state  law  — 
the  so-called  enabling  act  —  conferred  power  upon  the  city  to 

1  14  Wash.  604.     1896. 


HOME  RULE  IN  WASHINGTON  427 

regulate  the  manner  of  electing  its  own  officers,  but  this  was  not 
deemed  adequate  to  include  the  regulation  of  election  contests. 
Apparently  the  city  could  exercise  only  such  powers  as  were  con- 
ferred by  the  legislature,  not  by  the  constitution ;  and  this  grant 
of  powers  by  the  legislature  must  be  strictly  construed  even  though 
the  result  be,  as  in  this  case,  that  the  matter  in  hand  must  go  un- 
controlled because  the  legislature  had,  doubtless  by  oversight, 
failed  to  cover  it  specifically.  Such  a  ruling,  if  consistently  ap- 
plied, would  merely  make  the  constitutional  grant  of  the  right 
to  frame  a  charter  a  ridiculous  farce,  for  it  is  to  be  observed  that 
the  rule  was  not  rested  upon  the  view  that  this  was  an  inappropri- 
ate subject  for  charter  control. 

This  decision  might  have  been  ascribed  to  the  fact  that  the 
Tacoma  charter  had  chosen  for  its  tribunal  to  try  election  contests 
one  of  the  courts  created  by  the  constitution  as  a  part  of  the 
general  judicial  organization  of  the  state.  Had  the  court  rested 
solely  upon  the  view,  which  was  unmistakably  expressed,  that  a 
city  could  not  confer  jurisdiction  upon  such  a  court,  there  might 
have  been  a  good  deal  of  justification  for  the  judgment  of  invalidity 
that  was  spoken.  But  when  in  the  case  of  State  ex  rel.  Navin  v. 
Weir  1  the  court  was  urged  to  declare  that  the  Fawcett  case  had 
gone  no  further  than  this,  a  flat  refusal  was  given.  The  later  case 
concerned  the  validity  of  a  provision  of  the  Seattle  charter  which 
made  the  city  council  a  tribunal  to  hear  and  decide  election  con- 
tests. Declaring  this  provision  to  be  void  and  declining  to  de- 
limit the  doctrine  of  the  Fawcett  case,  the  opinion  asserted  that 
"an  inspection  of  that  case  will  show  that  the  decision  was  rested 
upon  the  proposition  that  the  power  to  provide  a  tribunal  and 
clothe  it  with  authority  to  try  contested  election  cases  was  not 
specially,  nor  by  necessary  implication,  conferred  by  the  legislature 
or  by  the  constitution  upon  municipalities  of  the  first  class." 
Why  such  power  was  not  conferred  by  the  constitution  the  court 
evidently,  and  perhaps  wisely,  deemed  it  superfluous  to  explain. 

It  need  only  be  remarked  in  conclusion  that  in  view  of  the 
somewhat  extended  regulation  of  election  matters  by  the  provi- 

1  26  Wash.  501.     1901. 


428     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

sions  of  the  home. rule  charters  of  Washington  cities  —  regulation 
which  in  some  instances  goes  to  the  length  of  limiting  election 
expenses  and  providing  punishment  for  corrupt  practices 1  — 
there  must  be  many  of  these  provisions  which  are  in  effective 
operation  simply  because  they  have  not  been  contested. 

May  a  City  provide  for  Recall  Elections? 

The  decisions  of  the  Washington  court  in  respect  to  the  compe- 
tence of  home  rule  cities  to  establish  the  institution  of  the  recall 
stand  in  striking  contrast  with  those  on  the  subject  of  election 
contests.  In  1909  a  councilman  of  the  city  of  Everett  sought  to 
avoid  the  consequences  of  a  recall  petition  by  alleging,  among  other 
things,  that  there  was  neither  constitutional  nor  statutory  sanction 
for  the  recall  provision  of  the  city's  charter.  In  Hilzinger  v. 
Gillman2  the  supreme  court  refused  to  sustain  this  allegation. 
Under  the  "enabling  act"  cities  were  empowered  to  prescribe  the 
terms  for  which  councilmen  should  be  elected.  The  pertinent  in- 
quiry was,  therefore,  for  what  term  was  the  appellant  elected,  and 
this  inquiry  was  answered  by  the  charter.  He  was  elected  to  hold 
office  until  a  definite  date  "  unless  removed  for  cause  or  recalled." 
This  rendered  his  term  subject  to  the  recall  condition.  It  was 
broadly  declared  that  both  the  constitution  and  the  general  law 
recognized  that  the  larger  cities  of  the  state  should  determine  "im- 
portant and  complex  questions  of  local  policy  for  themselves,"  and 
"  it  is  only  when  some  act  in  the  execution  of  that  policy  conflicts 
with  the  general  law  or  contravenes  the  constitution,  that  the  act 
can  be  questioned."  Whether  the  power  to  provide  for  the  recall 
be  regarded  "as  being  derived  from  the  constitution  subject  to 
the  control  of  the  general  law,  or  as  derived  from  the  latter,  the 
result  will  be  the  same.  If  derived  from  the  constitution,  it  does 
not  conflict  with  the  general  law,  and  if  derived  from  the  latter, 
it  is  within  its  spirit  and  purpose." 

Here  was  the  clear  intimation  of  a  wholly  new  doctrine,  although 
there  was  evidence  of  judicial  caution.  It  need  not  be  declared 

1  Spokane  charter  of  1910,  sec.  65.  z  56  Wash.  228.     1909. 


HOME  RULE  IN  WASHINGTON  429 

whether  the  authority  in  question  was  referable  to  the  constitution 
or  the  law.  But  if  referable  to  the  constitution,  it  could  be 
"  questioned"  only  on  the  ground  of  conflict  with  some  general 
law.  The  charter  provisions  creating  tribunals  for  the  settlement 
of  municipal  election  contests  had  not  been  in  conflict  with  any 
general  law.  They  related  to  a  matter  that  certainly  might  be 
embraced  within  the  term  "local  policy"  with  as  much  propriety 
as  the  institution  of  the  recall.  The  power  to  establish  such  tri- 
bunals could  even  be  derived  from  the  law,  which  conferred  power 
to  regulate  the  "manner"  of  electing  city  officers,  by  quite  as 
forceful  implication  as  could  the  authority  to  provide  for  the  recall 
be  rested  upon  the  grant  of  power  to  fix  the  "terms"  of  such 
officers.  The  conclusion  seems  unescapable  that  the  doctrine  of 
the  election  contest  cases  is  wholly  irreconcilable  with  that  of  this 
recall  case. 

In  1912  the  Washington  constitution  was  amended  so  as  to  pro- 
vide generally  for  the  recall  of  public  officers,1  and  in  1913  the 
legislature  enacted  a  law  in  pursuance  of  this  amendment.2  Both 
the  amendment  and  the  law  were  made  applicable  to  cities  under 
freeholders'  charters  by  specific  reference  to  cities  of  the  first  class. 
In  State  ex  rel.  Lynch  v.  Fairley  3  it  was  held  that  this  amendment 
and  law  superseded  the  recall  provisions  of  the  Spokane  charter,  and 
obviously  the  same  ruling  would  apply  to  provisions  of  like  char- 
acter in  all  other  home  rule  charters.  The  assumption  by  the  state, 
through  the  medium  of  a  constitutional  amendment,  of  complete 
control  over  this  matter  doubtless  renders  the  decision  of  the  Hilzin- 
ger  case  of  less  importance  than  it  might  otherwise  have  proved  to  be. 

What  is  the  Scope  of  the  City's  Financial  Powers  ? 

In  the  early  case  of  Tacoma  v.  State  4  question  was  raised  as  to 
the  competence  of  the  home  rule  city  to  exercise  the  power  of 
eminent  domain.  The  enabling  act  of  1890  expressly  conferred 
this  power  but  apparently  permitted  the  city  to  institute  only 

1  Art.  I,  sees.  33,  34.  2  Laws  of  Wash.,  1913,  ch.  146. 

3  76  Wash.  332.     1913.  « 4  Wash.  64.     1892. 


430     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

"such  proceedings  as  may  be  authorized  by  the  general  laws  of  the 
state  for  the  appropriation  of  private  property  for  public  use." 
No  such  general  law  existed  at  the  time  Tacoma  framed  its  first 
charter.  Whether  because  of  this  fact  or  not,  the  framers  in- 
cluded in  the  charter  adequate  provisions  regulating  the  matter  of 
condemnation  proceedings.  Declaring  that  these  provisions 
were  void,  the  court  said : 

The  exercise  of  the  power  of  eminent  domain  is  so  high  and  peculiar 
a  thing  that  nothing  less  than  an  act  of  the  legislature  of  a  state  can  sup- 
port it,  and  that  act  must  not  only  confer  the  power,  but  prescribe  the 
method  by  which  it  is  to  be  done.  This  statement  would  apply  were  there 
no  requirement  of  conformity  to  the  general  law,  but  with  the  require- 
ment in  the  same  act  which  confers  the  power,  the  rule  is  doubly  binding. 
Because  the  constitution  permits  certain  cities  to  frame  charters  for  their 
own  government  is  no  sufficient  reason  for  their  assuming  a  branch  of 
the  sovereignty  of  the  state,  which  has  no  element  of  municipal  govern- 
ment in  it,  and  the  provisions  of  the  charter  must  therefore  be  held  void. . . . 

There  is  no  doubt  that  it  was  the  intention  of  the  legislature  of  1890, 
which  was  the  first  state  legislature,  and  had  thrust  upon  it  the  entire 
reorganization  of  the  state  in  many  directions,  to  provide  some  general 
law  by  which  municipal  corporations  not  only  of  the  first  class,  but  of 
the  other  classes  also,  could  acquire  real  estate  by  condemnation,  but  in 
the  press  of  its  business  that  subject  seems  to  have  been  overlooked,  except- 
ing that  the  authority  was  conferred  upon  the  first,  third  and  fourth 
classes.  The  legislature  of  1891  saw  fit  to  pass  an  act  under  which  the 
state  might  proceed  to  take  private  property  for  public  uses,  in  which 
the  method  of  procedure  was  minutely  laid  down  (Acts  of  1891,  p.  138), 
but  again  all  provisions  for  the  exercise  of  a  like  power  by  municipal  cor- 
porations was  apparently  overlooked.  Probably  another  session  will  not 
be  allowed  to  pass  without  s  me  adequate  legislation  to  cover  the  existing 
defect ;  but  in  the  meantime  there  seems  to  be  nothing  for  the  cities  and 
towns  of  the  state  to  do  but  to  wait,  or  rely  upon  voluntary  street  open- 
ing, or  the  acquisition  of  the  necessary  lands  by  contract. 

Here  was  certainly  an  amazing  utterance  of  doctrine.  The 
provisions  of  the  charter  regulating  the  exercise  of  the  power  of 
eminent  domain  would  have  been  void  even  had  there  been  no 
statutory  requirement  of  conformity  to  the  general  law  upon  this 
subject,  for  the  reason  that  this  was  a  "  branch  of  the  sovereignty 
of  the  state,  which  has  no  element  of  municipal  government  in 


HOME  RULE  IN  WASHINGTON  431 

it."  It  need  only  be  remarked  that  practically  every  aspect  of 
municipal  government  is  referable  to  the  sovereignty  of  the  state. 
Some  of  its  ordinary  powers  —  such,  for  example,  as  the  power  to 
own  and  operate  a  public  utility  —  may  indeed  be  conferred  upon 
private  persons  or  corporations;  but  most  of  its  powers  are 
strictly  public  and  governmental  in  character  —  or,  if  you  choose, 
"branches  of  the  sovereignty  of  the  state"  —  and  may  not  be  so 
conferred.  The  power  of  eminent  domain  is  in  plain  fact  so  low 
and  common  rather  than  so  "high  and  peculiar"  a  thing  that  it 
belongs  in  the  former  category,  it  being  a  power  that  is  frequently 
vested  in  private  persons.  Moreover,  it  is  well  nigh  inconceivable 
that  a  modern  municipal  corporation  could  operate  for  any  length 
of  time  without  enjoying  this  power.  The  truth  is  that  the  power 
of  eminent  domain  is  exercised  far  more  frequently  by  cities  than 
by  any  other  governmental  unit  in  our  system.  On  what  ground 
could  it  be  asserted,  then,  that  this  power  "has  no  element  of 
municipal  government  in  it"  —  whatever  may  have  been  meant  by 
such  assertion  ?  And  finally,  without  deviating  from  the  line  of 
argument  pursued  by  the  court,  even  though  it  be  conceded  ar- 
guendo  that  the  exercise  of  this  power  is  a  higher  and  more  peculiar 
thing  than  the  exercise  of  other  strictly  governmental  powers,  that 
it  is  an  act  of  sovereignty,  yet  the  question  may  be  asked :  was 
not  the  power  to  frame  a  charter  conferred  by  the  sovereign  in  the 
most  direct  manner  possible ;  to  wit,  through  the  medium  of  the 
fundamental  law  of  the  state  ? 

Perhaps  the  court  meant  to  declare  that  the  right  to  exercise 
this  power  was  not  included  within  the  grant  of  authority  to  frame 
a  charter  on  the  ground  that  it  was  not  a  municipal  affair  and  was 
therefore  not  an  appropriate  subject  of  charter  regulation.  If 
this  was  the  intention,  it  is  sufficient  to  say  that  it  was  not  very 
clearly  expressed,  and  that  in  any  case  it  was  a  somewhat  arbitrary 
view,  wholly  belied  by  the  practically  universal  provisions  of  mu- 
nicipal charters  in  this  country,  and  utterly  rejected  by  the  courts 
of  other  home  rule  states  in  which  questions  of  a  similar  character 
have  arisen.1 

1  Supra,  175,  336  ;  infra,  471,  536. 


432  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  1893  the  legislature  of  Washington  passed  "an  act  to  pro- 
vide for  the  assessment  and  collection  of  taxes  in  cities  of  the 
first  class."  l  This  act  deprived  the  officers  of  home  rule  cities 
of  the  power  to  assess  and  collect  city  taxes  and  vested  such  power 
in  county  officers.  It  was  contended  in  the  case  of  State  ex  rel. 
Seattle  v.  Carson 2  that  this  law  did  not  operate  to  control  the  pro- 
visions of  the  Seattle  charter  upon  this  subject.  This  contention 
was  rested  in  part  upon  an  elaborate  and  refined  definition  of  the 
meaning  of  the  phrases  "  subject  to,"  "  consistent  with,"  and 
"  controlled  by, "  as  used  in  the  home  rule  provision  of  the  constitu- 
tion, and  in  further  part  upon  the  view  that  some  of  the  usual 
rights,  powers,  and  duties  of  a  city  "  concern  solely  the  munici- 
pality, while  in  some,  others  the  state  has  a  joint  interest,"  and 
that  as  to  the  former  the  city  under  a  freeholders'  charter  was 
not  " subject  to"  the  general  laws  of  the  state.  In  other  words, 
the  Washington  court  was  in  effect  urged,  although  the  argument 
employed  was  somewhat  tortuous  and  involved,  to  introduce  into 
the  interpretation  of  the  constitution  upon  this  point  the  distinc- 
tion between  affairs  of  municipal  concern  and  those  of  state  con- 
cern —  a  distinction  which  a  few  years  later  was  written  into 
the  California  constitution  and  which  was  ultimately  read  into 
the  Missouri  provision  by  the  courts.  Said  the  court : 

The  construction  contended  for  by  appellant  is  against  the  weight  of 
authority,  however,  and  is  also  against  public  policy,  in  our  opinion. 
Substantially  the  same  provision  as  the  one  quoted  from  our  constitution 
is  contained  in  the  constitutions  of  California  and  Missouri,  and  in  these 
states  the  right  of  the  legislature  to  amend  the  charters  of  such  cities  has 
been  recognized  and  is  established.  The  constitution  of  California  differs 
from  ours  in  that  it  requires  such  charters  and  amendments  thereto  to  be 
submitted  to  the  legislature  for  approval  or  rejection,  and  for  that  reason 
appellant  argues  that  the  California  cases  are  without  force  here.  But 
in  construing  this  provision  the  courts  of  that  state  have  placed  the  right 
of  the  legislature  to  amend  these  charters  upon  the  clause  that  such 
cities  "shall  be  subject  to  and  controlled  by  general  laws,"  and  it  seems 
to  us  that  the  intention  was  to  include  all  cities  in  said  clause,  from  the 
language  of  the  section,  regardless  of  its  construction  elsewhere. 

1  Laws  of  Wash.,  1893,  p.  167. 

2  6  Wash.  250.     1893. 


HOME  RULE  IN  WASHINGTON  433 

There  is  no  question  that  the  Washington  court  correctly  inter- 
preted the  California  and  Missouri  decisions  that  had  been  handed 
down  prior  to  that  date.  The  point  seems  not  to  have  been  urged, 
or  if  urged  was  not  discussed,  that  here  was  a  general  law  relating 
to  the  "organization"  of  cities,  which  had  not  been  accepted  by 
the  voters  of  Seattle.1  The  declaration  of  the  constitution  in 
this  respect  was  ignored.  The  decision  laid  down  the  far-reach- 
ing rule  that  a  law  of  general  application  to  a  class  of  cities  would 
control  a  contrary  charter  provision  regardless  of  the  nature  of 
the  subject-matter  of  the  law. 

In  the  case  of  Howe  v.  Barto  2  a  provision  of  the  charter  of 
Seattle  was  upheld  which  declared  that  deeds  executed  by  the  proper 
officer  upon  the  sale  of  land  for  taxes  should  be  prima  facie  evi- 
dence of  the  fact  that  the  procedure  in  such  matters,  as  provided 
for  in  the  charter,  had  been  complied  with.  The  case  is  of  little 
importance  in  connection  with  our  study  here  except  perhaps 
that  it  was  a  fairly  liberal  interpretation  of  the  scope  of  the  city's 
powers  under  a  legislative  grant  of  authority  to  provide  for  the 

essment  and  collection  of  taxes.     This  competence  was  specifi- 

ly  referred  by  the  court  not  only  to  the  constitution  but  also 

the  state  law. 

he  framers  of  the  Spokane  charter  of  1910,  evidently  with  a 
knowledge  of  the  doctrine  of  the  early  case  of  Tacoma  v.  State, 
were  careful  in  the  brief  article  dealing  with  local  improvements  3 
to  defer  to  the  authority  of  state  laws  relating  to  special  assess- 
ments. It  was  therein  declared  nevertheless  that  the  city  should 
have  power  "to  provide  for  the  payment  of  the  whole  or  any  part 
of  the  cost"  of  any  local  improvement  by  special  assessments4  — 
a  policy  which  did  not  at  the  time  run  counter  to  the  state  law. 
But  in  1911  a  statute  was  enacted  which  limited  such  assessments 
to  an  amount  equal  to  fifty  per  centum  of  the  value  of  any  property 
assessed  as  shown  by  the  tax  rolls.  The  precise  contention  that 
was  made  by  the  city  in  the  case  of  Van  der  Creek  v.  Spokane  5 
is  not  clear.  It  appears  to  have  been  to  the  effect  that  the  only 

1  Supra,  398,  399.  2  12  Wash.  627.     1895.  »  Art.  X. 

«  Sec.  92.  '  78  Wash.  94.     1914. 


434     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

limitation  on  the  power  of  the  city  in  this  regard  was  to  be  found 
in  another  provision  of  the  constitution,  which  implied  that  a 
special  assessment  should  not  exceed  the  benefit.1  The  court 
declared  without  qualification,  however,  that  "a  general  law 
governing  cities  and  towns  .  .  .  which  limits  the  power  granted 
...  is,  in  so  far  as  the  subject-matter  of  the  enactment  is  con- 
cerned and  the  municipality  affected,  a  limitation  of  equal  force 
and  as  imperative  in  its  working  as  if  it  were  a  part  of  the  consti- 
tution itself."  Than  this  a  broader  and  more  positive  statement 
of  the  absolute  supremacy  over  a  charter  provision  of  any  law  of 
general  application  could  scarcely  be  imagined. 

Again  in  Smith  v.  Seattle 2  the  competence  of  the  city  to  impose 
special  assessments  for  the  laying  of  water  mains  was  sustained 
under  the  authority  of  a  general  law  applicable  to  all  cities.  In 
the  opinion  rendered  in  this  case  it  was  expressly  declared  that 
the  act  in  question  "must  be  regarded  as  an  amendment  to  the 
general  incorporation  laws  theretofore  enacted  by  the  legislature 
under  sec.  10,  Art.  XI  of  the  constitution."  It  will  be  recalled 
that  cities  were  to  become  organized  under  these  general  laws  for 
the  " incorporation,  organization,  and  classification"  of  cities 
only  upon  a  favorable  vote  of  the  electors.  Why  this  act,  which 
was  an  amendment  to  such  laws,  should  without  acceptance 
have  applied  to  Seattle,  which  was  not  organized  under  these 
laws,  does  not  appear.  The  point  was  not  discussed.  It  was 
thus  that  the  Washington  court,  by  persistently  ignoring  whenever 
the  occasion  arose  an  express  provision  of  the  constitution,  was 
able  to  avoid  the  necessity  of  explaining  the  apparently  contradic- 
tory declarations  of  that  instrument  —  declarations  -identical 
with  those  of  the  California  constitution  which  had  been  so  much 
discussed  and  so  unsatisfactorily  elucidated  in  that  state.3 

In  the  case  of  the  Chlopeck  Fish  Co.  v.  Seattle  4  the  authority 
of  the  city  to  construct  a  pier  at  a  street  end  was  likewise 
premised  upon  "the  sweeping  powers  conferred  by  the  enabling 
act."  There  was  no  intimation  that  the  city  would  have  enjoyed 

1  Art.  VII,  sec.  9.  *  25  Wash.  300.     1901. 

8  Supra,  Ch.  VIII.  *  64  Wash.  315.     1911. 


HOME  RULE  IN  WASHINGTON  435 

such  a  power  as  a  direct  result  of  the  constitutional  grant  of  au- 
thority to  frame  a  charter. 

In  Seattle  v.  Clark  1  discussion  was  had  as  to  the  competence 
of  a  city  under  a  freeholders'  charter  to  control  the  matter  of 
liquor  licenses.  One  of  the  main  points  at  issue  was  whether 
one  statute  upon  this  subject  had  repealed  a  previously  enacted 
statute ;  but  clearly  the  authority  of  the  city  to  regulate  this  mat- 
ter at  all  was  ascribed  to  the  existence  of  a  law  which  conferred 
such  power  directly.  It  was  not  fair  to  assume  that  the  legisla- 
ture had  given  to  cities  of  the  second  class  the  right  to  fix  the 
amount  of  liquor  licenses  at  the  discretion  of  the  city  council 
and  had  withheld  that  right  from  cities  of  the  first  class.  It 
was  perfectly  manifest  that  "it  was  the  intention  of  the  leg- 
islature ...  to  leave  to  the  cities  of  the  state,  of  all  classes, 
full  power  to  regulate  the  sale  of  intoxicating  liquors  within  their 
limits." 

From  this  brief  review  of  the  cases  concerning  matters  pertain- 
ing to  the  financial  competence  of  the  home  rule  cities  of  Wash- 
ington, the  conclusion  must  be  reached  that  such  cities  are  not 
only  completely  subservient  to  the  provisions  of  all  general 
state  laws  regulating  their  power  to  raise  revenues  but  are  also 
actually  dependent  upon  the  legislature  for  a  specific  grant  of 
powers  in  this  regard,  such  powers  being  not  embraced  within 
the  mere  authority  conferred  by  the  constitution  to  frame  a 
charter. 

It  ought  to  be  noted  perhaps  that  at  the  time  of  the  adoption 
of  the  Everett  charter  of  1912  a  separate  article  was  submitted 
which  made  provision  for  a  gradual  introduction  of  the  principle 
of  the  single  tax.  This  article  was  defeated  at  the  polls,  but  the 
scheme  was  later  approved  in  the  form  of  a  charter  amendment. 
It  appears  that  it  has  never  been  acted  upon  because  of  the  doubt 
that  surrounds  the  question  of  its  legality.  Aside  from  any  ques- 
tion of  its  conflict  with  the  general  principles  of  taxation  that  were 
laid  down  in  the  constitution,2  it  seems  patent  that  under  the 
decisions  this  charter  provision  is  void,  for  it  is  certain  that  neither 

1  28  Wash.  717.     1902.  2  Art.  VII,  sec.  1. 


436     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

in  the  enabling  act  nor  in  any  other  statute  has  the  legislature 
conferred  upon  home  rule  cities  the  power  to  establish  such  a 
system  of  taxation. 

What  is  the  City's  Power  to  regulate  Matters  pertaining  to  Public 

Utilities  f 

The  most  numerous  group  of  cases  in  the  Washington  juris- 
diction that  have  construed  and  applied  the  home  rule  provisions 
of  the  state  constitution  consists  of  those  which  have  dealt  with 
the  powers  of  cities  in  respect  to  public  utilities.  In  the  early 
case  of  Seymour  v.  Tacoma  l  it  was  clearly  implied  that  the  city 
under  a  freeholders'  charter  enjoyed  the  power  to  purchase  a 
waterworks  or  an  electric  lighting  plant  only  as  a  result  of  an 
express  grant  of  such  power  contained  in  the  enabling  act  of  1890. 
No  further  cases  on  the  subject  of  municipal  ownership  have 
arisen  in  the  state  for  the  reason  apparently  that  no  city  has  ever 
attempted  to  exceed  the  limit  of  its  competence  in  this  respect  as 
fixed  by  the  enabling  act. 

This  same  enabling  act  conferred  explicitly  upon  cities  the 
power  "to  regulate  and  control  the  use  and  price  of  water"  and 
"to  regulate  and  control  the  use"  of  gas  or  other  lights  furnished 
to  the  inhabitants  of  such  cities.  In  addition  to  this  and  other 
enumerated  powers  it  was  provided  that  these  cities  should  have 
"all  such  powers  as  are  usually  exercised  by  municipal  corpora- 
tions of  like  character  and  degree,  whether  the  same  shall  be 
specifically  enumerated  in  this  act  or  not." 

The  first  freeholders'  charter  of  Tacoma,  adopted  in  the  same 
year  hi  which  this  statute  was  enacted,  conferred  upon  the  city 
council  "the  power  to  fix  the  price  of  water  and  light  furnished  to 
inhabitants  of  the  city  by  any  person  or  corporation  other  than 
the  city."  In  the  case  of  the  Tacoma  Gas  &  Electric  Light  Com- 
pany v.  Tacoma 2  the  question  was  squarely  presented  to  the 
court  whether  the  city  could  exercise  the  power  of  fixing  gas 
rates.  Examining  the  enabling  act  with  great  minuteness  the 

1  6  Wash.  138.     1893.  *  14  Wash.  288.     1896. 


HOME  RULE  IN  WASHINGTON  437 

court  discovered  that  while  the  power  to  fix  water  rates  was 
expressly  conferred  by  the  act,  the  power  to  fix  gas  rates  was  not 
specifically  granted.  It  was  urgently  pressed  upon  the  court 
that  the  city  enjoyed  this  power  by  virtue  of  the  direct  grant  by 
the  constitution  of  the  right  to  frame  a  charter  for  its  own  govern- 
ment; but  this  wholly  reasonable  interpretation  of  the  consti- 
tutional provision  in  question  was  curtly  dismissed  with  the  declara- 
tion that  it  was  sufficient  to  say  "that  the  legislature  having  passed 
a  general  law  upon  the  particular  subject,  the  power  to  fix  such 
rates  must  be  found  therein,  if  at  all." 

This  decision  was  reached  in  the  year  1896.  It  took  rank, 
therefore,  among  the  fairly  early  adjudications  construing  the 
home  rule  provisions  of  the  constitution.  It  gave  small  hope  that 
the  court  could  be  relied  upon  to  entertain  any  liberality  of  view 
toward  the  scope  of  powers  conferred  by  these  provisions.  Not 
only  did  it  clearly  recognize  the  competence  of  the  legislature  to 
define  the  extent  of  powers  included  within  the  grant  of  the  right 
to  frame  a  charter,  but  it  also  declared  in  effect  that  the  complete 
list  of  such  powers  must  be  set  forth  in  the  law.  It  was  not  as- 
serted that  the  power  to  fix  gas  rates  was  a  power  inappropriate 
to  a  municipal  government.  It  was  not  even  necessary  to  de- 
termine this  point.  Neither  was  it  asserted  that  the  law  had 
prohibited  the  exercise  of  such  power.  It  had  simply  not  con- 
ferred it. 

It  may  be  that  the  court  was  entirely  justified  in  holding  that 
the  legislature  was  fully  competent  to  define  the  scope  of  the 
powers  that  might  be  exercised  under  a  home  rule  charter.  The 
constitution  required  that  such  charter  should  be  subject  to  general 
laws ;  and  the  enabling  act,  applying  as  it  did  to  all  cities  of  the 
first  class  and  being,  therefore,  of  "general  application,"  was 
doubtless  a  general  law.  It  is  nevertheless  difficult  to  see  why 
the  court  should  have  taken  the  view  that  the  limits  of  the  city's 
powers  must  be  found  in  the  law  —  that,  even  in  the  absence  of  any 
conflict  between  general  law  and  charter  provision,  no  specific 
power  could  be  directly  referred  to  the  constitutional  grant  of  au- 
thority to  frame  and  adopt  a  charter. 


438     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

During  the  ten  years  following  the  decision  of  this  Tacoma  case 
the  cities  of  Washington  contented  themselves  with  the  manage- 
ment of  their  public  utilities  to  the  extent  allowed  and  in  the  man- 
ner prescribed  by  state  law.  In  1906,  however,  in  the  case  of 
Hindman  v.  Boyd,1  already  mentioned  in  another  connection, 
contention  was  made  that  the  city  of  Spokane  was  incompetent 
to  apply  the  institution  of  the  initiative  and  referendum  to  the 
case  of  franchise  grants  as  provided  by  the  charter  of  the  city. 
Construing  the  enabling  act  the  court  held  that  the  power  to 
grant  franchises  was  expressly  conferred  by  the  act  and  that  the 
power  to  regulate  such  grants  in  the  manner  prescribed  by  the 
charter  was  not  in  conflict  with  the  act. 

Two  years  later,  in  the  case  of  Benton  v .  Seattle  Electric  Com- 
pany,2 the  court  was  called  upon  to  determine  the  validity  of  a 
similar  provision  of  the  Seattle  charter  when  construed  in  connec- 
tion with  a  law  of  1903  as  amended  in  1907  which  conferred  the 
power  to  issue  street  railway  franchises  upon  the  "legislative 
authority  "  of  the  city.  It  was  held  that  the  lawln  question  super- 
seded and  controlled  the  provisions  of  the  charter  which  required 
a  referendum  of  all  franchise  grants  to  the  voters.  This  decision 
was  not  based  upon  the  view  that  the  regulation  of  matters  per- 
taining to  public  utilities  in  general,  or  street  railways  in  partic- 
ular, was  a  matter  of  state  rather  than  of  local  concern.  In 
fact  as  we  have  already  seen  and  as  we  shall  have  occasion  again 
and  again  to  note,  this  distinction  has  never  been  introduced  in 
the  Washington  decisions  construing  the  home  rule  provisions 
of  the  constitution.  The  Benton  case  was  reaffirmed  in  Ewing 
v.  Seattle,3  where  a  practically  identical  issue  was  before  the  court. 

In  the  case  of  Tacoma  v.  Boutelle  4  the  validity  of  an  ordinance 
regulating  the  service  to  be  furnished  by  street  railway  companies 
was  sustained.  In  this  case  reference  was  made  to  the  provision 
of  the  constitution  which  specifically  conferred  the  police  power 
upon  cities ; 5  but  the  ordinance  appears  to  have  been  supported 

1  42  Wash.  17  (1906) ;  supra,  420.  2  50  Wash.  156  (1908) ;  infra,  450. 

3  55  Wash.  229  (1909) ;  infra,  450.  *  61  Wash.  434.     1911. 

6  Supra,  403. 


HOME  RULE  IN  WASHINGTON  439 

more  largely  by  reference  to  the  enabling  act  which  conferred 
power  upon  the  cities  of  the  first  class  "to  authorize  or  prohibit 
the  locating  and  constructing  of  any  railroad  or  street  railroad 
in  any  street,  alley,  or  public  place  in  such  city,  and  to  prescribe 
the  terms  and  conditions  upon  which  such  railroad  or  street  rail- 
road shall  be  located  or  constructed."  Referring  jointly  to  the 
constitution,  the  statute,  and  the  provisions  of  the  local  charter, 
the  court  asserted  that  these  showed  "a  sufficient  conferring  of 
power  upon  the  municipality." 

In  the  case  of  State  ex  rel.  Schade  Brewing  Company  v.  Superior 
Court 1  it  was  held  that  the  city  of  Spokane  had  no  power  to  grant 
to  a  railway  company  a  franchise  that  included  the  right  to  exclu- 
sive occupancy  of  a  city  street,  even  though  compensation  was 
required  to  be  paid  to  abutting  property  owners  for  damage 
sustained  as  a  result  of  the  practical  closing  of  the  street.  It 
was  not  clearly  declared  or  even  intimated  that  the  legislature 
could  not  have  conferred  such  power  upon  the  city.  By  a  some- 
what strict  construction  of  the  statutory  grant  of  powers  to  home 
rule  cities  it  was  held  that  the  legislature  had  not  in  fact  conferred 
the  power  sought  to  be  exercised.  The  franchise  grant  which 
the  city  attempted  to  make  was  distinguished  from  the  ordinary 
vacation  of  a  street,  and  emphasis  was  laid  upon  the  fact  that  al- 
though the  rights  of  abutting  property  owners  were  protected  by 
the  requirement  that  compensation  for  damages  should  be  paid, 
yet  the  rights  of  the  public  to  the  use  of  the  street  were  completely 
destroyed.  The  case  is  of  importance  in  this  connection  only  as 
it  indicates  again  that  the  city  under  a  freeholders'  charter  in 
Washington  was  compelled  to  look  to  the  law  in  order  to  ascertain 
the  scope  of  its  powers  to  control  matters  relating  to  public  utilities. 

In  1903  the  city  of  Seattle  granted  a  franchise  to  a  telephone 
company  in  accordance  with  the  provisions  of  its  charter.  Eight 
years  later  the  state  legislature  enacted  a  law  which  transformed 
the  state  railway  commission  into  a  public  service  commission 
endowed  with  power  to  establish  rates  to  be  charged  by  public 
service  corporations  throughout  the  state.  Shortly  after  the 

162  Wash.  96.     1911. 


440     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

enactment  of  this  statute  the  public  service  commission  issued 
an  order  directing  the  telephone  company  in  Seattle  to  inaugurate 
a  new  schedule  of  rates  which  were  somewhat  higher  than  those 
fixed  in  the  franchise  previously  granted  by  the  city.  An  injunc- 
tion was  sought  by  the  city  to  prevent  the  telephone  company 
from  collecting  the  rates  fixed  by  the  commission.  In  the  case 
of  the  State  ex  rel.  Webster  v.  Superior  Court l  question  was 
presented  to  the  Supreme  Court  as  to  whether  the  order  of  the 
commission,  issued  pursuant  to  authority  conferred  by  the  state 
law,  took  precedence  over  the  franchise  previously  granted  by 
the  city.  The  judgment  of  the  court  to  the  effect  that  the  order 
of  the  commission  was  binding  in  spite  of  the  contrary  regulation 
imposed  by  the  franchise  issued  by  the  city  was  founded  upon  the 
following  course  of  reasoning. 

It  was  assumed  that  the  city  had  lawful  authority  to  fix  tele- 
phone rates  at  the  time  when  the  franchise  was  granted,  but  it 
was  declared  that  the  authority  of  the  city  in  this  respect  had 
not  been  conferred  by  the  legislature  in  "  express  and  unmistak- 
able "  terms.  "The  power  to  fix  rates,"  said  the  court,  " being 
a  right  reserved  by  the  people  of  the  state,  cannot,  in  the  light  of 
the  constitution  be  held  to  be  an  incident  to  the  right  to  frame  a 
freeholders'  charter."  This  being  the  case,  the  franchise  which 
the  city  had  granted  to  the  telephone  company  could  not  be  re- 
garded as  a  contract  between  the  city  and  the  company.  "An 
essential  element  of  a  contract  was  wanting."  The  city  could 
not  enter  into  such  a  contract  unless  the  power  to  do  so  was 
explicitly  conferred  by  the  state.  Its  power  to  fix  rates  was, 
therefore,  "in  the  nature  of  a  license."  The  city  might  perhaps 
establish  rates,  but  it  could  not  enter  into  a  contract  in  respect 
to  rates  which  would  be  binding  upon  the  state  itself  in  the  exer- 
cise of  its  police  power  to  regulate  rates,  which  power  in  the  state 
could  not  be  "bartered  or  bargained  away"  by  the  city.  It  was 
declared  that  "without  exception,  courts  have,  in  the  absence 
of  positive  limitation,  upheld  the  authority  of  the  state  as  against 
municipal  corporations  when  dealing  with  the  problems  of  public 

1  67  Wash.  37  (1912)  ;  supra,  403. 


HOME  RULE  IN  WASHINGTON  441 

service,  and  have  been  careful  to  warn  against  the  danger  of  admit- 
ting a  divided  authority  either  to  control  or  direct." 

We  are  not  here  particularly  concerned  with  the  opinion  of  the 
court  on  the  question  as  to  whether  the  public  utilities  law  of 
1911  impaired  the  obligation  of  a  contract  into  which  the  city 
had  entered  with  the  telephone  company.  This  is  a  federal  ques- 
tion which  has  no  especial  relation  to  the  subject  of  home  rule. 
Obviously  this  guarantee  of  the  national  'constitution  would 
apply  to  acts  of  the  legislature  or  of  cities  regardless  of  whether 
the  latter  were  or  were  not  operating  under  charters  of  their 
own  making.  The  opinion  in  this  case  was  in  fact,  however, 
concerned  largely  with  this  federal  question,  which  was  thoroughly 
interwoven  with  the  other  question  as  to  the  supremacy  of  a  state 
law  over  a  charter  provision,  or  rather  the  supremacy  of  the  order 
of  a  state  commission  issued  in  pursuance  of  a  state  law  over  an 
action  of  the  city  taken  in  pursuance  of  a  charter  provision.  Aside 
from  the  fact  that  the  superiority  of  control  by  the  state  was 
completely  sustained,  perhaps  the  most  important  point  in  connec- 
tion with  our  study  is  the  assumption  or  concession  by  the  court 
that  a  city  might,  through  the  medium  of  a  freeholders'  charter, 
provide  for  the  regulation  of  telephone  rates  in  the  absence  not 
only  of  any  conflicting  state  law  but  also  of  any  express  grant  of 
power.  This  concession,  it  would  seem,  was  wholly  out  of  har- 
mony with  the  decision  of  the  first  case  above  noted  upon  this 
subject,  wherein  it  was  held  that  the  city  of  Tacoma  had  no 
authority  to  fix  gas  rates  because  such  authority  had  not  been  spe- 
cifically conferred  by  the  law.  It  would  seem  also  that  this  con- 
cession, which  was  made  at  the  outset  of  the  opinion  and  which 
constituted  in  fact  the  only  excuse  for  the  elaborate  discussion 
entered  into,  was  likewise  out  of  harmony  with  the  declaration  that 
was  made  in  the  course  of  the  opinion  to  the  effect  that  the  power 
to  fix  rates  could  not  "be  held  to  be  an  incident  to  the  right  to 
frame  a  freeholders'  charter."  On  the  whole  it  is  not  easy  to 
understand  why  the  court  was  not  contented  to  declare,  follow- 
ing the  doctrine  of  the  Tacoma  case,  that  the  power  of  the  city 
to  fix  telephone  rates  in  the  franchise  granted  was  wholly  ultra 


442     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

vires.  This  would  have  eliminated  all  necessity  for  any  discus- 
sion of  the  contractual  or  non-contractual  character  of  the  fran- 
chise involved. 

In  the  case  of  Spokane  v.  Spokane  &  Inland  Empire  Railroad 
Company 1  the  relation  of  the  public  utilities  act  of  1911  to 
the  charter  powers  of  home  rule  cities  was  again  presented  to  the 
court  for  consideration.  The  city  of  Spokane  enacted  an  ordi- 
nance providing  for  the  abolishment  of  grade  crossings.  It  was 
contended  by  the  railroad  company  that  the  power  to  compel 
grade  separations  was  vested  exclusively  in  the  public  service 
commission  of  the  state.  Examining  the  law  which  created  this 
commission,  the  court  held  that  the  commission  was  not  vested 
with  "any  power  to  change  street  grades  or  to  exercise  the  power 
of  eminent  domain."  This  being  so,  no  conflict  existed  between 
the  state  law  and  the  provisions  of  the  city's  charter  upon  this 
subject.  It  was  asserted  that  home  rule  cities  still  enjoyed  all 
the  police  power  "conferred  upon  them  by  the  constitution  and 
laws  of  this  state,  except  in  so  far  as  the  state,  by  its  general  law, 
had  withdrawn  that  power  and  sought  itself  to  exercise  it."  The 
authority  to  order  a  change  of  grade  crossings  was  an  appropriate 
exercise  of  the  police  power  of  the  city.  The  ordinance  in  ques- 
tion was  held  void,  nevertheless,  upon  the  ground  that  in  requir- 
ing railroad  companies  to  institute  condemnation  proceedings  to 
bring  about  changes  of  grade,  and  in  imposing  upon  the  courts 
the  duty  of  determining  what  portion  of  the  cost  of  such  work 
should  be  borne  by  the  railways,  the  city  was  in  effect  conferring 
its  power  of  eminent  domain  upon  the  railroad  companies  and  a 
non-judicial  power  upon  the  courts.  It  was  clearly  intimated 
that  should  the  city  revise  its  ordinance  so  as  to  eliminate  these 
defects  the  action  of  the  city  would  be  entirely  within  the  scope 
of  its  competence. 

In  this  case  the  authority  to  enact  an  ordinance  abolishing  grade 
crossings  was  referred  to  the  police  power  of  the  city.  No  spe- 
cific provision  of  the  charter  conferring  such  authority  was  named, 
It  was  not  made  clear,  however,  whether  it  was  the  view  of  the 

i  75  Wash.  651.     1913. 


HOME  RULE  IN  WASHINGTON  443 

court  that  the  police  power  of  the  city  was  referable  directly  to 
the  enabling  act  or  to  the  clause  of  the  constitution  which  con- 
ferred such  power  upon  cities.1  In  fact  these  several  points  were 
not  discussed  in  any  detail.  But  if  the  authority  to  abolish  grade 
crossings  could  be  sustained  under  the  general  police  power  of 
cities,  whether  that  power  was  derived  from  the  constitution  di- 
rectly or  from  the  general  law  of  the  state,  the  decision  of  this 
case  also  was  out  of  harmony  with  the  first  public  utilities  case 
herein  mentioned ;  for  it  will  be  recalled  that  in  the  Webster  case 
above  referred  to  the  court  expressly  characterized  the  power  to 
fix  rates  as  being  included  within  the  definition  of  the  police  power. 
If  home  rule  cities  enjoy  the  authority  from  either  the  constitu- 
tion or  the  statutes  to  exercise  general  police  powers,  it  is  difficult 
to  see  why  the  power  to  fix  gas  rates,  which  was  denied  in  the 
Tacoma  case,  should  not  have  been  sustained  under  this  general 
grant  of  the  police  power. 

In  the  case  of  Seattle  Electric  Company  v.  City  of  Seattle  2 
there  was  drawn  into  question  the  validity  of  an  ordinance  enacted 
for  the  purpose  of  regulating  the  operation  of  street  cars  to  pre- 
vent overcrowding  and  to  secure  compliance  with  a  schedule 
which  was  required  to  be  filed  in  the  office  of  the  city  superin- 
tendent of  public  utilities.  The  city  conceded  that  the  power  to 
regulate  such  matters  as  this  was,  under  the  public  utilities  law 
of  1911,  vested  in  the  public  service  commission;  but  the  conten- 
tion was  made  that  "  until  such  time  as  the  public  service  com- 
mission shall  act,  the  city  retains  jurisdiction  to  regulate  street 
railroads"  in  the  manner  attempted.  On  this  point  the  court 
declared : 

It  is  plain  that  the  state  must  be  held  to  have  spoken  upon  a  given 
subject-matter  when  its  legislative  will  becomes  effective.  From  that 
time  the  policy  of  the  state  is  declared.  But  if  there  is  room  for  the  exer- 
cise of  concurrent  jurisdiction,  the  act  of  the  state  legislature  does  not 
revoke  the  right  of  the  city  to  exercise  the  police  power. 

The  inquiry  then  must  be  directed  to  the  question  as  to  whether  the 
legislature  intended  that  the  city  should  exercise  its  police  power  over  the 
subject-matter  of  the  ordinance  after  the  public  service  commission  law 

1  Supra,  403.  2  78  Wash.  203.     1914. 


444  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

took  effect  and  prior  to  the  time  that  the  public  service  commission  might 
issue  an  order. 

The  public  service  commission  law  of  this  state  was  substantially 
taken  from  the  Wisconsin  law.  This  fact  is  conceded  by  both  the  appel- 
lants and  the  respondent.  The  Wisconsin  law  contained  a  provision  that 
the  act  should  not  apply  to  street  and  electric  railroads  engaged  solely 
in  the  transportation  of  passengers  within  the  limits  of  cities.  In  the 
law  of  this  state,  we  find  no  such  provision.  The  terms  of  the  law,  as 
shown  by  the  excerpts  already  quoted,  are  most  comprehensive.  The 
appellant  concedes  that  these  provisions  invest  the  public  service  com- 
mission with  the  right  to  control  street  railways  by  the  issuance  of  an 
order  after  a  hearing  and  also  the  right  of  the  city  to  invoke  the  aid  of  the 
commission  in  regulating  and  controlling  street  railways  operating  within 
its  limits.  Had  the  legislature  intended  that  the  city  might  exercise 
jurisdiction  until  the  commission  should  issue  an  order,  it  seems  strange 
that,  with  the  Wisconsin  law  before  it,  with  a  provision  therein  exempting 
certain  street  and  electric  railroads  from  its  operation,  that  [sic]  some 
qualification  would  not  have  been  inserted  in  the  law  of  this  state. 

Again,  if  it  was  the  legislative  will  that  jurisdiction  should  be  retained 
by  the  city,  the  insertion  in  the  law  of  the  right  of  the  city  to  invoke  the 
aid  of  the  commission  would  be  entirely  useless.  To  so  construe  the  law 
that  the  city  might  exercise  the  power  of  regulation  until  the  public  ser- 
vice commission  should  act,  would  be  of  no  substantial  benefit  to  the  city 
and  would  give  rise  to  conflict  of  authority  and  inevitable  confusion.  If 
this  were  the  meaning  of  the  law,  the  city,  after  it  had  gone  to  the  trouble 
and  expense  of  acquiring  the  necessary  data  and  passing  a  regulating 
ordinance,  might  have  its  work  nullified  whenever,  to  use  the  language  of 
the  statute,  complaint  might  be  made  to  the  commission  by  "  any  person, 
corporation,  chamber  of  commerce,  board  of  trade,  or  any  commercial, 
mercantile,  agricultural  or  manufacturing  society,  or  any  body  politic  or 
municipal  corporation,"  and  the  commission  should  issue  an  order.  And 
the  public  utilities  company,  if  it  should  comply  with  the  ordinance  and 
incur  expenses  necessarily  incident  thereto,  might  have  its  work  undone 
in  like  manner. 

Considering  the  entire  statute,  and  especially  the  excerpts  quoted 
therefrom  it  seems  plain  to  us  that  it  was  the  legislative  intent  that  the 
power  and  authority  to  regulate  public  utilities  was  vested  in  the  public 
service  commission  from  and  after  the  time  the  law  took  effect ;  and  that, 
when  the  law  became  effective,  it  revoked  the  power  of  the  city  to  legis- 
late upon  the  subject-matter  covered  by  the  ordinance. 

The  decision  of  the  court  in  this  case,  which  denied  to  the  city 
the  power  to  regulate  public  service  corporations  in  respect  to 


HOME  RULE  IN  WASHINGTON  445 

ty  matter  over  which  the  state  commission  had  been  granted 
jurisdiction,  even  though  such  commission  had  taken  no  action 
under  its  statutory  authority,  seems  to  require  no  comment. 

From  this  review  of  the  Washington  cases  involving  questions 
>f  the  power  of  home  rule  cities  over  public  utilities  it  is  manifest 
that  the  court  has  for  the  most  part  been  consistent  chiefly  in  its 
narrowness  of  view.  To  sum  up,  the  following  points  of  law  may 
be  said  to  be  fairly  established :  (1)  that  the  city  enjoys  no  right 
to  acquire  and  operate  a  utility  except  under  grant  of  authority 
from  the  legislature,  not  the  constitution ;  (2)  that  the  power  to 
fix  utility  rates  must  likewise  be  found  in  statutory  allowance, 
but  in  one  case  the  power  of  the  city  to  regulate  rates  was  conceded 
to  have  been  "in  the  nature  of  a  license"  although  it  could  not 
be  regarded  as  "an  incident  to  the  right  to  frame  a  charter"  and 
had  not  been  "unmistakably"  conferred  by  the  law;  (3)  that  the 
power  to  grant  franchises,  which  must  also  be  given  by  the  legis- 
lature, could  be  regulated  by  the  home  rule  charter  only  to  the 
extent  that  such  regulation  did  not  collide  with  the  law  as  rigidly, 
if  not  indeed  unreasonably,  construed;  (4)  that  the  power  to 
regulate  service  and  to  order  the  abolishment  of  grade  crossings 
might  be  referred  to  a  specific  or  a  general  grant  of  the  police 
power,  although  it  is  not  quite  clear  whether  this  police  power  was 
derived  from  the  constitution,  the  statutes,  or  the  charter;  (5) 
that  after  the  assumption  by  the  state  of  control  over  municipal 
utilities  through  the  medium  of  a  state  commission,  the  city  might 
regulate  utility  corporations  (presumably  within  the  scope  of 
competence  conferred  by  the  law)  only  in  respect  to  matters 
over  which  the  state  commission  was  not  given  potential  authority. 

To  What  Extent  can  the  City  regulate  the  Rights  of  Private  Persons 
having  Claims  against  the  City  f 

No  cases  have  arisen  within  the  Washington  jurisdiction  involv- 
ing any  question  of  the  competence  of  cities  under  freeholders' 
charters  to  limit  the  rights  of  private  persons  who  may  assert 
-claims  arising  out  of  taxes,  special  assessments,  or  contracts. 


446     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  only  cases  of  this  general  character  in  the  books  have  been 
concerned  with  charter  provisions  regulating  the  matter  of  dam- 
age claims. 

The  contention  was  made  in  the  early  case  of  Scurry  v.  Seattle  1 
that  a  provision  of  the  charter  of  Seattle  requiring  that  all  claims 
for  damages  should  be  presented  to  the  city  council  within  six 
months  after  the  time  when  such  claims  accrued  was  in  conflict 
with  the  general  statute  of  limitations  enacted  by  the  legislature. 
The  court  held  that  no  conflict  between  the  charter  provision  and 
the  law  existed,  for  the  obvious  reason  that  if  the  requirement  of  the 
charter  had  been  complied  with  the  person  making  the  claim 
would  have  had  the  full  statutory  period  ki  which  to  bring  an 
action.  There  was  no  intimation  in  the  opinion  handed  down 
that  the  charter  provision  upon  this  subject  was  not  entirely 
within  the  competence  of  the  city. 

In  the  case  of  Durham  v.  Spokane  2  it  was  held  that  the  pro- 
vision of  a  freeholders'  charter  which  required  that  every  claim 
for  damages  for  injuries  resulting  from  a  defective  sidewalk  should 
be  filed  with  the  city  council  and  should  set  forth  the  nature  and 
extent  of  the  injuries  received  did  not  prevent  the  introduction, 
at  the  trial  of  a  cause  arising  out  of  such  claim,  of  evidence  con- 
cerning the  nature  of  the  injuries  although  such  evidence  had 
not  been  included  in  the  statement  of  the  claim  as  filed  with  the 
city  council.  The  opinion  declared  in  effect  that  the  charter 
provision  in  question  could  not  be  strictly  construed  in  this  re- 
spect. But  it  was  also  expressly  held  that  a  city  could  not  pre- 
vent a  recovery  against  itself  by  requiring  claims  for  injuries  to  be 
presented  within  a  given  time  when  in  point  of  fact  physical  ail- 
ments arising  out  of  such  injuries  might  not  develop  until  subse- 
quent to  the  limit  of  time  prescribed.  Said  the  court : 

It  is  not  the  rule  that  a  city  may  say  whether  or  not  it  shall  be  held 
for  personal  injuries  caused  by  its  neglect  of  duty.  Charter  provisions 
of  the  character  in  question,  whether  enacted  by  the  legislature,  or,  as 
in  the  present  case,  by  the  city  itself,  are  to  be  upheld  only  so  far  as  they 
are  reasonable  and  tend  to  the  due  administration  of  justice. 

1  8  Wash.  278.     1894.  2  27  Wash.  615.     1902. 


HOME  RULE  IN  WASHINGTON  447 

It  was  not  explained  upon  what  constitutional  ground  the  court 
could  have  declared  void  a  provision  of  a  legislative  charter  which 
imposed  such  a  limitation,  or  which  even  went  so  far  as  to 
deny  to  individuals  the  right  to  recover  from  the  city  for  neglect 
of  duty  in  maintaining  the  sidewalks  in  proper  repair.  The 
home  rule  city  and  the  legislature  were  apparently  grouped  to- 
gether in  the  declaration  which  the  court  made  as  to  their  incom- 
petence to  enact  a  charter  provision  of  the  character  indicated. 
It  can  scarcely  be  said,  therefore,  that  the  decision  of  this  case 
imposed  upon  the  power  of  the  city  a  limitation  based  upon  the 
fact  that  the  charter  was  of  the  home  rule  variety. 

In  the  case  of  Hase  v.  Seattle  1  a  claim  against  the  city  for 
damages  resulting  from  personal  injuries  was  contested  on  the 
ground  that  the  claimant  in  the  statement  which  she  filed  with 
the  city  clerk  did  not,  as  was  required  by  an  ordinance  enacted 
under  the  authority  of  the  charter,  state  her  residence  for  the 
past  year  nor  clearly  set  forth  the  defect  in  the  sidewalk  which 
was  the  alleged  cause  of  the  accident.  The  court  pointed  to  the 
fact  that  the  powers  claimed  by  cities  in  all  cases  of  this  character 
were  powers  in  derogation  of  common  law  rights.  It  is,  of  course, 
a  platitude  of  our  law  that  statutes  enacted  by  the  legislature  and 
the  rules  of  the  common  law  stand  upon  precisely  the  same  foot- 
ing before  the  courts.  Common  law  rules  prevail  unless  repealed 
or  modified  by  the  constitution  or  the  statutes.  This  being  the 
case,  it  is  not  easy  to  see  why  the  Washington  court  did  not  declare 
that  all  such  charter  provisions  as  the  one  here  under  review  were 
void  as  being  in  conflict  with  a  general  law  of  the  state  —  in  this 
case,  a  general  principle  of  the  common  law.  The  court,  however, 
did  not  rest  its  decision  upon  any  such  view.'  On  the  contrary, 
the  doctrine  of  the  Durham  case  was  invoked,  and  the  regulation 
prescribed  by  the  city  was  declared  void  because  of  its  unreason- 
abjeness.  In  the  view  of  the  court  such  a  regulation  "  would 
in  no  way  aid  the  city  in  the  investigation  of  the  claim." 

It  may  be  observed  that  in  this  case,  where  the  regulations 
in  question  were  prescribed  by  an  ordinance  rather  than  specifi- 

1  51  Wash.  174.     1908. 


448     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

cally  by  the  charter,  the  judgment  of  the  court  might  have  been 
sustained  under  the  well-known  rule  that  the  courts  are  compe- 
tent to  declare  void  any  unreasonable  ordinance.1  But  since  the 
court  expressly  declared  that  the  question  discussed  in  the  Dur- 
ham case,  where  the  limitation  was  imposed  directly  by  the  char- 
ter, "was  the  identical  question  at  issue  in  this  case,  where  the 
limitation  was  imposed  by  ordinance,"  it  would  seem  that  this 
was  not  the  rule  relied  upon,  but  that  the  court  asserted  the 
authority  of  the  judiciary  to  hold  void  any  charter  provision  upon 
this  subject  which  was  not  in  accord  with  its  own  ideas  of  what 
was  reasonable.  The  opinion  did  not  in  fact  lay  emphasis  upon 
the  point  that  the  city  was  operating  under  a  freeholders'  charter, 
although  there  is  probably  very  little  doubt  that  the  court  was 
influenced  by  this  fact. 

It  is  perhaps  obvious  that  no  clear-cut  rules  of  law  may  be  de- 
rived from  these  Washington  cases  touching  the  competence  of  a 
home  rule  city  to  regulate  the  matter  of  private  claims  against 
itself.  The  most  that  can  be  said  is  that  the  court  has  been  in- 
clined to  take  a  somewhat  narrow  view  of  the  competence  of  the 
city,  impressed  no  doubt  by  the  curious  fact  that  the  city  should 
be  setting  limitations  upon  its  own  liability. 

To  what  Extent  could  the  Legislature,  Irrespective  of  the  Powers  to  be 
exercised,  impose  upon  the  City  Requirements  in  Respect  to  the 
Form  of  its  Government  and  the  Medium  through  which  its 
Powers  might  be  exercised  f 

Without  allusion  to  the  specific  matter  under  review,  a  number 
of  cases  have  been  previously  referred  to  in  which  the  decisions  of 
the  Washington  court  turned  largely  upon  an  asseveration  by  the 
court  of  competence  in  the  legislature  to  prescribe  by  a  law  of 
general  applicableness  the  precise  agency  of  the  city  government 
which  might  exercise  this  or  that  power  conferred  by  statute.  Thus 
in  Seattle  v.  Clark,2  involving  the  question  of  the  power  of  the  city 
to  control  liquor  licenses,  one  of  the  main  points  at  issue  in  the 

1  Supra,  181,  325,  405.  *  28  Wash.  717  (1902) ;  supra,  435. 


HOME  RULE  IN  WASHINGTON  449 

case  was  whether  the  enabling  act,  which  empowered  cities  under 
freeholders'  charters  "to  fix  by  ordinance"  the  amount  to  be  paid 
for  such  licenses,  operated  to  prevent  the  city  from  fixing  the 
minimum  fee  by  charter  provision.  The  court  held  that  the  re- 
quirement of  the  law  might  be  "considered  as  directory;"  and 
since  there  was  no  provision  in  the  act  "excluding  all  other  ways 
for  fixing  a  license  fee  than  by  ordinance,"  that  "a  liberal  con- 
struction of  the  statute  expands  the  meaning  of  a  statute  to  em- 
brace cases  within  the  spirit  or  reason  of  the  law.  The  fixing  of 
this  fee  can  be  regulated  as  well  by  a  charter  amendment  as  by 
ordinance;  and,  if.it  is  made  uniform  and  certain  in  one  or  the 
other  of  these  ways,  the  legislative  will  of  the  state  in  conferring 
upon  the  municipality  power  to  govern  the  traffic  is  carried  out." 

Again  in  Hindman  v.  Boyd  1  it  was  urged  as  one  of  the  reasons 
for  opposing  the  submission  to  the  voters  of  a  proposed  amend- 
ment to  the  charter  of  Spokane  (providing  for  a  compulsory  refer- 
endum on  certain  franchises  upon  the  petition  of  a  percentage  of 
the  voters)  that  the  "legislative  power"  of  the  city  was  by  the 
enabling  act  vested  in  the  mayor  and  council,  and  that  such  power 
could  not  by  a  charter  amendment  be  revested  in  the  voters.  It 
was  held,  however,  that  since  the  enabling  act  also  provided  that 
the  mayor  and  council  should  "have  such  powers  as  may  be  pro- 
vided for  in  the  charter."  and  that  since  "the  power  to  make  a 
charter  is  in  a  sense"  itself  "a  legislative  power,"  the  city  was  not 
prohibited  from  adopting  an  amendment  which  would  vest  some 
control  over  the  granting  of  franchises  directly  in  the  voters.  And 
it  was  further  held  that  in  any  case  the  act  which  empowered  cities 
to  employ  the  institution  of  the  initiative  and  referendum  had  in 
effect  repealed  the  provision  of  the  enabling  act  vesting  the  legis- 
lative power  of  the  city  in  the  mayor  and  council.  The  opinion 
expressed  in  this  case,  as  well  as  that  delivered  in  Seattle  v.  Clark, 
was  reaffirmed  in  Hartig  v.  Seattle.2 

In  these  cases  the  view  was  not  put  forward  that  the  powers  in 
question  related  to  matters  of  state  concern  and  that,  therefore, 

1  42  Wash.  17  (1906) ;   supra,  420,  438. 

2  53  Wash.  432.     1909. 


450     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

if  exercised  at  all  by  the  city,  such  powers  must  be  exercised  in  the 
precise  manner  and  through  the  precise  agency  prescribed  by  the 
law.  This  point  was  not  discussed  or  adverted  to.  Neither  was 
the  rule  laid  down  that,  if  the  competence  of  the  city  to  control 
these  matters  be  conceded  because  they  were  matters  of  local 
concern,  it  must  also  be  conceded  that  the  home  rule  city  was 
empowered  to  determine  the  manner  in  which  and  the  agency 
through  which  such  powers  should  be  exercised.  The  only  points 
elaborated  by  the  court  were  points  of  statutory  construction; 
and  it  must  be  admitted  that  for  the  Washington  court  the 
constructions  noted  were  of  an  exceedingly  liberal  character. 

But  witness  in  contrast  certain  other  decisions  of  the  same 
tribunal. 

In  Benton  v.  Seattle  Electric  Co.1  it  was  held,  as  has  been  noted, 
that,  as  applied  at  least  to  street  railway  franchises,  the  provision 
of  the  Seattle  charter  requiring  a  referendum  upon  franchises  was 
void  as  being  in  conflict  with  a  state  law  of  1903  which  declared 
that  the  "  legislative  authority  of  the  city  or  town  having  control 
of  any  public  street"  might  grant  such  franchises.  This  being  the 
law,  a  franchise  granted  by  the  mayor  and  council  of  the  city  was 
perfectly  valid  even  though  not  approved  by  the  voters  as  required 
by  the  charter.  Reading  the  opinion  in  this  case,  one  is  prompted 
to  inquire  as  to  what  had  become  of  the  "liberal  construction  of  a 
statute"  that  embraced  "cases  within  the  spirit  or  reason  of  the 
law ;"  and  finding  no  answer,  one  is  timorously  tempted  to  regret 
that,  after  all,  the  oft-referred-to  "books"  occasionally  contain 
so  little  of  actual  enlightenment. 

The  opinion  uttered  in  this  case  was  reaffirmed  in  Ewing  v. 
Seattle,2  the  precise  point  decided  being  that  the  "legislative 
authority"  of  the  city  —  the  mayor  and  council  —  was  under  no 
obligation  whatever  to  award  a  street  railway  franchise  to  the 
highest  bidder  in  accordance  with  the  requirement  of  the  charter, 
because  the  law,  without  qualification,  had  conferred  power  upon 
such  "authority"  to  grant  such  a  franchise.  It  might  indeed  be 
conceded  that  "the  showing  made  in  behalf  of  the  plaintiff  was 

1  50  Wash.  156  (1908) ;  supra,  438.  2  55  Wash.  229  (1909) ;   supra,  438. 


HOME  RULE  IN  WASHINGTON  451 

such  as  to  warrant  the  learned  trial  court  in  granting  the  tempo- 
rary injunction'*  for  which  prayer  was  made.  The  argument  of 
" learned  counsel"  was  " plausible."  But  it  was  notwithstanding 
false  in  its  "assumption;"  for  did  not  the  law  confer  upon  the 
" legislative  authority"  of  cities  not  only  the  power  to  grant  such 
franchises  but  also  the  power  to  "prescribe  the  terms  and  con- 
ditions on  which  such  railroads  or  railways  and  their  appurte- 
nances shall  be  constructed,  maintained,  and  operated  ?  "  What 
did  it  matter  that  "bids  were  invited  and  received  in  the  manner 
provided  by  the  charter  "  ?  This  in  no  wise  lessened  "the  power  of 
the  legislative  branch  of  the  city  government  to  ultimately  deter- 
mine the  question  in  any  way  it  saw  fit."  Who  could  doubt  in 
the  year  1909  that  the  term  "legislative  authority"  wholly  ex- 
cluded the  voters  of  a  city  from  the  possibility  of  claiming  to  be  a 
part  of  that  authority?  It  was  "settled  law  in  this  state  .  .  . 
that  a  general  law  enacted  by  the  legislature  is  superior  to  and 
supersedes  all  freehold  charter  provisions  inconsistent  therewith." 
To  hold  that  the  provisions  of  such  a  charter  might  so  limit  the 
power  of  the  "legislative  authority"  of  the  city  "as  to  reduce  it 
to  a  mere  ministerial  or  at  most  a  judicial  act  .  .  .  would  be  to 
take  from  the  mayor  and  council  a  portion  of  the  legislative 
power  directly  conferred  upon  them  by  a  general  law  of  this  state." 
This  would  be  unthinkable ! 

Is  it  fair  to  remind  the  court  that  this  same  term  —  "legisla- 
tive authority" —  as  used  in  the  fundamental  law  of  the  state, 
in  connection  with  the  procedure  prescribed  for  adopting  and 
amending  freeholders'  charters,  was  defined  by  this  same  tribunal 
as  a  merely  ministerial  authority  ?  1 

Again  in  State  ex  rel.  Schade  Brewing  Co.  v.  Superior  Court,2 
where  it  was  very  evident  that  the  court  disapproved  of  the  policy  of 
an  ordinance  of  Spokane  which  empowered  a  railroad  company  to 
make  an  exclusive  occupation  of  a  portion  of  a  city  street  in  order 
to  emerge  from  a  tunnel,  a  rule  of  strict  construction  was  applied. 
The  title  of  an  act  of  1907  indeed  purported  to  confer  "additional 
authority"  upon  cities  of  the  first  class  in  respect  to  the  grant  of 

1  Supra,  413-418.  2  62  Wash.  96  (1911) ;  supra,  439. 


452     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

authority  to  railroads  to  use  the  streets ;  but  the  act  was  in  fact 
no  more  comprehensive  in  this  respect  than  was  the  original  en- 
abling act  of  1890.  It  was  held,  nevertheless,  that  there  was  a 
" fundamental  difference  between  the  two  grants  of  power,"  and 
that  this  difference  at  once  rendered  "plain  the  purpose  of  the 
enactment  of  the  latter."  The  act  of  1890  did  not  grant  power  to 
" councils"  but  to  " cities,"  this  power  being  "left  to  the  cities  to 
be  exercised  in  such  manner  as  the  people  thereof  might  provide 
by  their  charter."  The  court  took  solemn  "judicial  notice  of  the 
fact  that,  in  at  least  some  of  these  cities,  .  .  .  the  council  was  very 
much  limited  in  the  exercise  of  this  power."  By  the  law  of  1907 
these  charter  restrictions  were  removed.  The  franchise  power 
was  to  be  exercised  "by  ordinance,  which,  of  course,  means  by  the 
city  council."  "  Here,  then,  we  have  the  additional  power  granted, 
not  to  the  city  in  the  sense  in  which  power  was  granted  by  the 
enabling  act  of  1890,  but  to  the  city  council."  This  was  why  the 
framers  of  the  law  in  question  bad  entitled  it  "an  act  granting 
additional  powers  to  cities  of  the  first  class."  Surely  this  was  a 
remarkable  elucidation  of  the  purport  of  the  statute. 

The  validity  of  the  commission  government  charter  of  the  city 
of  Spokane,  adopted  in  December,  1910,  was  attacked  in  the  case 
of  Walker  v.  Spokane  *  upon  the  ground  that  the  organization  of 
government  therein  provided  was  in  violation  of  a  provision  of  the 
enabling  act  which  declared  "that  the  legislative  powers  of  any 
city,  organized  under  the  provisions  of  this  act,  shall  be  vested  in 
a  mayor  and  a  city  council."  In  reply  to  this  contention  the  court 
said : 

We  think  the  position  of  the  appellant  is  untenable,  even  under  the 
provisions  of  Sec.  7517.  There  is  nothing  in  that  section  which  under- 
takes to  specify  or  limit  the  duties  of  a  mayor  as  an  executive  officer.  In 
fact,  he  is  not  even  described  as  an  executive  officer,  but  as  a  legislative 
officer ;  and  the  objection  to  the  proposed  charter  is  that  it  in  reality  makes, 
nothing  of  him  but  a  legislative  officer.  It  is  contended  by  the  learned 
counsel  for  appellant  that,  while  the  section  does  not  specifically  provide 
that  the  executive  power  shall  reside  in  a  mayor,  it  is  necessarily  implied 
by  the  mention  of  that  official ;  that  if  no  function  other  than  acting  in 

1  62  Wash.  312  (1911) ;  supra,  421. 


HOME  RULE  IN  WASHINGTON 


453 


conjunction  with  the  city  council  in  matters  of  legislation  was  intended 
to  be  performed  by  the  mayor,  no  mention  of  such  official  would  have 
been  made,  and  the  mandate  of  the  law  would  have  been  simply  that  the 
legislative  power  of  the  city  should  be  vested  in  a  city  council.  Hence, 
it  is  necessarily  implied  that  cities  of  the  first  class  are  each  to  have  a 
mayor  possessing  the  distinguishing  characteristics  of  that  office.  But 
there  is  no  room  for  an  implication  when  the  plain,  mandatory  provisions 
)f  the  statute  are  to  the  contrary.  And  as  we  have  seen,  Sec.  7517  pro- 
vides that  the  mayor  and  council  shall  have  such  powers  as  may  be  pro- 
vided for  in  its  charter,  and  that  they  shall  perform  such  duties  and 
>ive  such  compensation  as  may  be  prescribed  in  such  charter. 

The  construction  put  upon  the  statute  in  question  was  doubtless 
wholly  reasonable.  The  point  of  importance,  however,  is  that  there 
was  here  a  clear  indication  that  the  only  reason  why  a  home  rule 
city  might  adopt  a  charter  providing  the  commission  form  of  gov- 
ernment was  that  no  general  law  of  the  state  imposed  any  require- 
ment that  prohibited  the  establishment  of  such  a  type  of  govern- 
ment. 

The  case  of  State  ex  rel.  Rose  v.  Hindley  l  involved  an  issue  of 
facts  which  necessitated  a  consideration  of  the  power  of  a  city  to 
provide  in  a  home  rule  charter  for  a  health  department.  In  1893 
the  legislature  passed  an  act  providing  for  the  establishment  of 
boards  of  health  in  every  city  of  the  state ;  but  it  was  expressly 
declared  that  the  provisions  of  this  law  should  not  "  apply  to  any 
city  in  which  a  board  of  health  is  organized  and  a  health  officer 
appointed  under  the  provisions  of  a  special  charter."  This,  of 
course,  left  cities  of  the  home  rule  class  free  to  regulate  the  organ- 
ization of  boards  of  health  through  the  medium  of  charters  of 
their  own  making.  Such  a  health  board  was  established  by  the 
charter  of  Spokane,  but  when  the  city  in  1910  adopted  a  charter 
of  the  commission  variety  no  provision  was  made  for  such  a  de- 
partment. It  may  be  noted  that,  following  the  usual  plan  of  such 
governments,  provision  was  made  for  the  organization  of  five 
administrative  departments  and  among  these  was  a  "department 
of  public  safety."  The  charter  did  not  enumerate  the  powers  of 
these  several  departments  but  vested  power  in  the  council,  or 

1  67  Wash.  240.     1912. 


454     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

commission,  to  make  a  distribution  of  powers  and  functions  by 
ordinance.1  This  fact  was  not  adverted  to  by  the  court  in  the 
opinion  that  was  handed  down  in  the  case  here  under  review. 
Whether  "a  department  of  public  safety"  could  or  could  not  be 
held  to  embrace  a  department  of  health  was  not  discussed.  Cer- 
tainly in  most  commission  government  charters  control  over 
matters  pertaining  to  the  public  health  has  been  vested  in  a  com- 
prehensive department  of  this  character.  However,  the  court 
held  that  the  new  charter  of  the  city  contained  "no  provision 
whatever  relating  to  boards  of  health,"  nor  "did  it  provide  for  the 
exercise  of  any  powers  by  any  of  the  city  departments  or  boards 
of  the  nature  of  those  pertaining  to  boards  of  health."  Conse- 
quently the  relator  in  the  case,  a  bacteriologist  formerly  in  the 
employ  of  the  health  department  under  sanction  of  an  ordinance 
of  the  city,  was  declared  to  have  been  legislated  out  of  office  by  the 
adoption  of  the  charter.  It  may  be  remarked  that  one  Frank 
Hinman  was  made  a  defendant  by  the  relator  who  sought  to  retain 
his  office.  This  Hinman  was  employed  by  the  city  as  a  bacteriol- 
ogist subsequent  to  the  adoption  of  the  charter.  The  court  held 
that  it  was  unnecessary  to  inquire  as  to  the  legality  of  his  employ- 
ment. "It  might  be  argued,"  it  was  said,  "  that  we  must  presume 
that  he  is  employed  by  the  board  of  health  as  organized  under  the 
general  law.  This,  however,  is  of  no  moment  in  our  present 
inquiry."  It  was  not  unmistakably  asserted,  although  it  was 
certainly  clearly  intimated,  that  since  the  city  had  failed  to  make 
in  its  charter  specific  provision  for  a  health  department,  such  a 
department  would  have  to  be  organized  under  the  state  law  of 
1893.  Two  of  the  five  members  of  the  court  dissented  from  the 
decision  of  the  majority  upon  the  ground  that  the  employment  of 
Hinman  as  a  bacteriologist  under  the  new  charter  precluded  the 
assertion  that  such  office  did  not  exist  under  the  charter. 

We  are  not  here  especially  concerned  with  the  somewhat  unsat- 
isfactory conclusions  reached  by  the  court.  Neither  are  we  es- 
pecially interested  in  the  inquiry  as  to  whether  or  not  the  general 
law  of  the  state  providing  for  the  establishment  of  boards  of  health 

i  Sec.  22. 


HOME  RULE  IN  WASHINGTON  455 

did  in  point  of  fact  become  operative  in  Spokane  by  reason  of 
the  omissions  of  its  charter.  The  chief  point  of  importance  in 
connection  with  our  study  is  the  declaration  that  was  made  at  the 
outset  of  the  opinion  to  the  effect  that  the  only  reason  why  a  city 
enjoyed  the  power  to  establish  a  health  department  under  the 
terms  of  a  freeholders'  charter  was  because  the  state  law  provid- 
ing for  the  creation  of  such  departments  in  all  cities  had  specifi- 
cally excepted  cities  under  special  charters  which  contained 
provisions  on  this  subject.  Nor  was  this  declaration,  let  it  be 
once  more  remarked,  based  upon  the  view  that  the  control  of 
public  health  was  a  state  as  distinguished  from  a  local  or  munici- 
pal affair.  The  court  would  have  held  the  same  view  had  the  case 
involved  a  department  of  waterworks  or  of  parks. 

So  much  for  the  opinions  of  the  Washington  court  in  respect  to 
the  competence  of  the  legislature  to  prescribe  the  particular  agency 
of  the  local  government  through  which  any  power  of  the  city  — 
regardless  of  its  nature  —  might  be  exercised.  Whatever  may  be 
thought  of  the  consistency  and  logic  of  the  court's  pronouncements, 
there  could  be  no  question  that  the  power  of  the  legislature  in 
this  regard  was  absolutely  unlimited. 

The  Washington  cases  which  have  construed  the  grant  of  home 
rule  powers  as  made  in  the  constitution  of  1889  present  two  con- 
spicuous points  of  interest.  In  the  first  place,  except  in  the  cases 
involving  questions  of  procedure  in  the  making  and  amending  of 
charters,  the  courts  have  taken  an  exceedingly  narrow  view  of  the 
scope  of  powers  embraced  within  this  grant.  The  competence  of 
the  legislature  to  set  the  limit  of  the  city's  powers  in  the  so-called 
enabling  act  was  early  recognized,  and  practically  no  power  was 
sustained,  even  in  the  absence  of  conflicting  state  law,  which  could 
not  be  referred  to  this  act.  This  means,  of  course,  that  in  practice 
as  well  as  in  law  home  rule  in  Washington  has  been  and  is  more 
largely  a  matter  of  legislative  grace  than  of  constitutional  right. 
There  is  no  power  which  cities  have  actually  exercised  which  might 
not  be  taken  away  by  a  legislative  repeal  of  the  provision  of  the 
law  by  which  such  power  is  conferred. 


456  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  the  second  place,  a  law  of  general  applicableness  supersedes 
and  controls  a  contrary  charter  provision  regardless  of  the  subject- 
matter  of  such  law  and  provision.  The  distinction  between  state 
and  local  affairs  has  not  been  read  into  the  constitution  by  the 
courts,  and  therefore  no  sphere  of  immunity  from  the  control  of 
state  laws  has  been  created  for  the  city  even  in  respect  to  matters 
which  are  sometimes  regarded  as  of  strictly  local  concern. 

That  the  measure  of  home  rule  in  Washington  under  the  applica- 
tion of  these  rules  of  law  has  not  been  wholly  negligible  has  obvi- 
ously been  due  to  the  liberal  practice  of  the  legislature  in  confer- 
ring powers  and  in  refraining  from  occupying  fields  of  municipal 
control  through  the  medium  of  laws  of  general  application  to 
cities  of  over  twenty  thousand  inhabitants.  It  is  patent,  never- 
theless, that  this  measure  has  been  far  short  of  what  has  pre- 
vailed in  certain  other  states  and  that  it  is  by  no  means  as  extensive 
as  many  advocates  of  home  rule  conceive  that  it  should  be. 


CHAPTER  XIII 
HOME  RULE  IN  MINNESOTA 

IN  1896  the  power  to  frame  charters  was  conferred  upon  the 
cities  of  Minnesota  by  the  adoption  of  a  constitutional  amendment 
which  was  itself,  as  to  certain  details,  amended  two  years  later. 
As  so  amended  the  provision  read  as  follows  : 1 

Any  city  or  village  in  this  State  may  frame  a  charter  for  its  own  gov- 
ernment as  a  city  consistent  with  and  subject  to  the  laws  of  this  State, 
as  follows:  The  legislature  shall  provide,  under  such  restrictions  as  it 
deems  proper,  for  a  board  of  fifteen  freeholders,  who  shall  be  and  for  the 
past  five  years  shall  have  been  qualified  voters  thereof,  to  be  appointed 
by  the  district  judges  of  the  judicial  district  in  which  the  city  or  village 
is  situated,  as  the  legislature  may  determine,  for  a  term  in  no  event  to 
exceed  six  years,  which  board  shall,  within  six  months  after  its  appoint- 
ment, return  to  the  chief  magistrate  of  said  city  or  village  a  draft  of  said 
charter,  signed  by  the  members  of  said  board,  or  a  majority  thereof. 
Such  charter  shall  be  submitted  to  the  qualified  voters  of  such  city  or 
village  at  the  next  election  thereafter,  and  if  four-sevenths  of  the  qualified 
voters  voting  at  such  election  shall  ratify  the  same  it  shall,  at  the  end  of 
thirty  days  thereafter,  become  the  charter  of  such  city  or  village  as  a  city, 
and  supersede  any  existing  charter  and  amendments  thereof;  provided, 
that  in  cities  having  patrol  limits  now  established,  such  charter  shall 
require  a  three-fourths  majority  vote  of  the  qualified  voters  voting  at 
;such  election  to  change  the  patrol  limits  now  established. 

Before  any  city  shall  incorporate  under  this  act  the  legislature  shall 
prescribe  by  law  the  general  limits  within  which  such  charter  shall  be 
framed.  Duplicate  certificates  shall  be  made  setting  forth  the  charter 
proposed  and  its  ratification,  which  shall  be  signed  by  the  chief  magis- 
trate of  said  city  or  village  and  authenticated  by  its  corporate  seal.  One 
•of  said  certificates  shall  be  deposited  in  the  office  of  secretary  of  state, 
and  the  other,  after  being  recorded  in  the  office  of  the  register  of  deeds 
for  the  county  in  which  such  city  or  village  lies,  shall  be  deposited  among 

i  Article  IV,  sec.  36. 
457 


458  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  archives  of  such  city  or  village,  and  all  courts  shall  take  judicial  notice 
thereof.  Such  charter  so  deposited  may  be  amended  by  proposal  there- 
for made  by  a  board  of  fifteen  commissioners  aforesaid,  published  for  at 
least  thirty  days  in  three  newspapers  of  general  circulation  in  such  city 
or  village,  and  accepted  by  three-fifths  of  the  qualified  voters  of  such 
city  or  village  voting  at  the  next  election,  and  not  otherwise ;  but  such 
charter  shall  always  be  in  harmony  with  and  subject  to  the  Constitution 
and  laws  o£_the  State  of  Minnesota.  The  legislature  may  prescribe  the 
duties  of  the  commission  relative  to  submitting  amendments  of  charter 
to  the  vote  of  the  people  and  shall  provide  that  upon  application  of  five 
per  cent  of  the  legal  voters  of  any  such  city  or  village,  by  written  peti- 
tion, such  commission  shall  submit  to  the  vote  of  the  people  proposed 
amendments  to  such  charter  set  forth  in  said  petition.  The  board  of 
freeholders  above  provided  for  shall  be  permanent,  and  all  the  vacancies 
by  death,  disability  to  perform  duties,  resignation  or  removal  from  the 
corporate  limits,  or  expiration  of  term  of  office,  shall  be  filled  by  appoint- 
ment in  the  same  manner  as  the  original  board  was  created,  and  said 
board  shall  always  contain  its  full  complement  of  members. 

It  shall  be  a  feature  of  all  such  charters  that  there  shall  be  provided, 
among  other  things,  for  a  mayor  or  chief  magistrate,  and  a  legislative 
body  of  either  one  or  two  houses ;  if  of  two  houses,  at  least  one  of  them 
shall  be  elected  by  general  vote  of  the  electors. 

In  submitting  any  such  charter  or  amendment  thereto  to  the  qualified 
electors  of  such  city  or  village,  any  alternate  section  or  article  may  be 
presented  for  the  choice  of  the  voters,  and  may  be  voted  on  separately 
without  prejudice  to  other  articles  or  sections  of  the  charter  or  any  amend- 
ments thereto. 

The  legislature  may  provide  general  laws  relating  to  affairs  of  cities 
the  application  of  which  may  be  limited  to  cities  of  over  fifty  thousand 
inhabitants,  or  to  cities  of  fifty  and  not  less  than  twenty  thousand  in- 
habitants, or  to  cities  of  twenty  and  not  less  than  ten  thousand  inhabi- 
tants, or  to  cities  of  ten  thousand  inhabitants  or  less,  which  shall  apply 
equally  to  all  such  cities  of  either  class,  and  which  shall  be  paramount 
while  in  force  to  the  provisions  relating  to  the  same  matter  included  in 
the  local  charter  herein  provided  for.  But  no  local  charter,  provision,  or 
ordinance  passed  thereunder  shall  supersede  any  general  law  of  the  State 
defining  or  punishing  crimes  or  misdemeanors. 

The  power  to  frame  a  charter  as  thus  conferred  was  extended  to 
every  city  and  village  of  the  state.  According  to  the  federal 
census  of  1910  there  were  about  eighty  such  cities  and  villages  in 
Minnesota.  More  than  half  of  these  have  adopted  charters  of 


HOME  RULE  IN  MINNESOTA  459 

their  own  making.  Most  of  these  cities,  however,  and  of  course 
all  of  the  villages,  are  of  comparative  unimportance.  The  only 
sizable  cities  of  this  state  which  are  operating  under  home  rule 
charters  are  St.  Paul  and  Duluth.  Winona,  with  a  population  of 
eighteen  thousand  inhabitants,  is  third  in  size  among  the  home 
rule  cities  of  the  state.  Both  St.  Paul  and  Duluth  have  been 
organized  under  freeholders'  charters  since  1900.  St.  Paul  has 
had  but  one  such  charter,  although  in  May,  1912  this  instrument 
was  so  fundamentally  amended  as  to  introduce  the  commission 
form  of  government.1  Duluth  adopted  its  second  freeholders' 
charter  in  December,  1912.  The  case  of  Minneapolis,  the  largest 
city  of  the  state,  has  been  somewhat  pathetic ;  for  ever  since  the 
adoption  of  the  constitutional  amendment  conferring  the  right  to 
frame  charters  this  city  has  been  in  the  throes  of  charter-making. 
Again  and  again  have  charters  been  submitted  to  a  vote  of  the 
people  only  to  meet  defeat  at  the  polls.  In  1913  months  of  care- 
ful consideration  were  given  to  the  drafting  of  a  charter,  but  at  an 
election  held  in  September  this  charter  met  the  fate  of  its  numerous 
predecessors. 

The  provisions  of  the  Minnesota  constitution  upon  this  subject 
present  several  distinctive  features  when  read  in  contrast  with  the 
home  rule  provisions  of  other  constitutions  which  we  have  con- 
sidered. As  compared  with  these  other  constitutions  the  Minne- 
sota provisions  offer  peculiarities,  first,  in  respect  to  the  matter 
of  the  procedure  by  which  a  home  rule  charter  may  be  framed  and 
adopted ;  second,  in  respect  to  the  unmistakable  competence  of  the 
legislature  to  determine  the  scope  of  powers  that  may  be  exercised 
by  the  home  rule  city ;  and  third,  in  respect  to  the  emphatic  dec- 
larations of  the  constitution  on  the  subject  of  the  supremacy  of 
state  laws  over  charter  provisions.  The  conditions  of  home  rule 
in  Minnesota,  as  established  in  the  practice  both  of  the  cities  them- 
selves and  of  the  legislature  of  the  state  and  as  interpreted  by  the 

1  The  advocates  of  the  commission  form  of  government  in  St.  Paul  proposed  this 
amendment  to  the  charter  and  secured  its  adoption  just  in  advance  of  the  submis- 
sion to  the  voters  of  a  charter  which  was  drawn  along  the  so-called  federal  plan  and 
which  had  been  drafted  by  the  board  of  freeholders. 


460     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

adjudications  of  the  courts,  may  be  appropriately  considered  under 
topics  suggested  by  these  distinctive  features. 

The  Procedure  for  Drafting  and  Adopting  a  Home  Rule  Charter 

It  is  worthy  of  especial  note  that  the  board  of  freeholders  pro- 
vided for  in  the  Minnesota  constitution  is  not  an  elected  body.  Its 
members  are  appointed  by  the  district  judges  of  the  judicial  dis- 
trict in  which  the  city  or  village  is  located.  Moreover,  when  once 
appointed,  the  members  of  this  board  hold  office  for  a  definite 
term  not  to  exceed  six  years.  The  constitution  does  not  deter- 
mine when  and  under  what  conditions  district  judges  shall  take 
action  in  this  matter  of  appointing  freeholders.  The  city  does  not, 
therefore,  enjoy  by  direct  constitutional  grant  the  right  to  initiate 
the  movement  for  the  adoption  of  a  charter  of  its  own  making. 
The  constitution  declares  that  boards  of  freeholders  shall  be  ap- 
pointed under  such  restrictions  as  the  legislature  may  deem  proper, 
and  pursuant  to  this  authority  the  legislature  has  provided  1  that 
such  boards  shall  be  appointed  whenever  the  district  judges  deem 
it  for  the  best  interests  of  the  city  or  village  in  question,  and  that 
they  must  be  appointed  upon  the  presentation  to  such  judges  of  a 
petition  signed  by  ten  per  centum  of  the  municipal  voters.  It  is 
thus  by  statutory  rather  than  constitutional  grant  that  the 
voters  of  every  city  and  village  are  vested  with  power  to  take 
action  in  the  direction  of  securing  a  home  rule  charter.  Upon  the 
presentation  of  a  petition  of  this  character  the  judges  of  the  dis- 
trict court  have  no  option ;  they  are  under  mandate  to  appoint 
the  board  of  freeholders  requested. 

When  once  a  board  of  freeholders  has  been  named  for  any  city  or 
village  the  constitution  contemplates  that  such  board  shall  remain 
in  permanent  existence.  This  is  of  necessity  the  case  since  these 
boards  are  empowered  to  propose  charter  amendments.  The  law 
has  fixed  the  term  of  office  of  the  members  at  four  years  and  has 
provided  for  the  filling  of  any  vacancies  that  may  occur  during  the 
term  of  office  and  for  the  making  of  new  appointments  at  the 

1  Laws  of  Minn.,  1899,  ch.  351 ;  1901,  chs.  129,  323;  1903,  ch.  238. 


HOME  RULE  IN  MINNESOTA  461 

>iration  of  the  term.  It  should  be  mentioned  in  this  connection 
that  while  the  constitutional  amendment  did  not  itself  confer  upon 
cities  the  absolute  authority  to  require  the  appointment  of  a  board 
of  freeholders,  the  amendment  did  confer  upon  cities  the  right, 
through  the  medium  of  a  petition  of  five  per  centum  of  the  voters, 
to  compel  the  subsequent  submission  of  charter  amendments.  It 
is  difficult  to  see  what  useful  function  the  board  of  freeholders 
performs  in  the  submission  of  amendments  thus  proposed.  The 
board  has  no  discretion  whatever  either  to  withhold  or  to  alter 
such  amendments.  Apparently,  also,  the  power  to  make  provi- 
sion for  the  holding  of  an  election  and  to  determine  whether  an 
amendment  proposed  by  petition  shall  be  submitted  at  a  general 
or  at  a  special  election  is  vested  in  the  "law-making  authorities" 
of  the  city  or  village,  and  not  in  the  board  of  freeholders.1  In 
other  words,  where  amendments  are  proposed  by  petition  any 
action  by  the  board  of  freeholders  seems  wholly  superfluous. 

An  interesting  side-light  is  thrown  upon  this  somewhat  curious 
manner-  of  constituting  the  charter-drafting  body  by  the  facts 
presented  in  the  case  of  Young  v.  City  of  Mankato.2  Upon  the 
petition  of  voters  in  this  little  city  a  board  of  freeholders  was  duly 
named  by  the  district  court.  The  board  met  and  by  resolution 
appointed  two  of  its  own  members  "as  attorneys  to  draft  for  it  a 
proposed  charter  for  its  consideration  and  adoption."  This  res- 
olution provided  for  the  payment  of  compensation  to  the  members 
thus  designated.  The  charter  drafted  by  these  two  members, 
apparently  without  any  active  participation  by  the  other  members 
of  the  board,  was  subsequently  adopted  by  the  board  and  presented 
to  the  people  for  ratification.  The  state  law  which  regulated 
the  appointments  of  boards  of  freeholders  permitted  the  employ- 
ment by  such  boards  of  an  attorney  at  a  reasonable  compensation, 
but  it  also  expressly  provided  that  the  members  of  the  board 
should  receive  no  compensation  for  their  services.  The  court 
held  that  "as  a  matter  of  law,  members  of  the  charter  commission 
cannot  employ  themselves  to  assist  themselves."  Here  was  doubt- 
less an  instance  in  which  the  district  court  had  appointed  members 

1  Laws  of  Minn.,  1903,  ch.  238,  sec.  6.  2  97  Minn.  4.     1905. 


462     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  a  board  of  freeholders  who  either  did  not  feel  themselves  com- 
petent to  perform  the  duty  imposed  upon  them  or  were  wholly 
uninterested  in  the  matter  before  them.  They  in  effect  trans- 
ferred the  powers  conferred  and  the  obligations  imposed  upon  them 
by  the  constitution  and  the  law  to  two  of  their  number,  contenting 
themselves  with  merely  ratifying  the  result  of  the  labors  of  these 
members.  Such  a  situation  would,  of  course,  be  well-nigh  in- 
conceivable under  provisions  by  which  the  members  of  a  charter 
commission  were  chosen  by  popular  election. 

The  Minnesota  provision  required  for  the  ratification  of  a 
charter  the  favorable  vote  of  an  extraordinary  majority  (four- 
sevenths)  of  those  voting  "at  the  next  election,"  and  for  the  adop- 
tion of  any  amendment,  a  three-fifths  majority  of  those  voting 
"at  the  next  election."  Manifestly  these  extraordinary  majorities 
rendered  the  ratification  of  a  charter  or  amendment  somewhat 
difficult  of  accomplishment.  Moreover,  by  the  employment  of 
the  term  "next  election"  the  constitution  apparently  contemplated 
the  submission  of  a  charter  or  amendment  at  some  regular  election 
for  which  provision  had  already  been  made. 

In  the  case  of  State  ex  rel.  Greene  v.  Hugo  1  it  was  held  that  two 
amendments  to  the  charter  of  Duluth  which  had  been  submitted 
at  a  general  city  election  had  not  been  validly  adopted  because, 
although  receiving  an  affirmative  vote  of  three-fifths  of  those 
who  voted  upon  the  propositions  submitted,  they  did  not  re- 
ceive the  approval  of  three-fifths  of  those  who  participated  in 
the  election.  This  determination  was  obviously  based  upon  a 
correct  interpretation  of  the  requirement  of  the  constitution  and 
was  quite  in  accord  with  the  weight  of  authority  upon  this 
subject. 

In  one  or  two  other  respects,  however,  the  supreme  court  of 
Minnesota  has  been  exceedingly  liberal  in  its  interpretation  of  the 
constitutional  requirements  relating  to  matters  of  procedure. 
Thus  in  State  ex  rel.  Nichols  v.  Kiewel 2  it  was  held  that  the  re- 
quirement that  a  charter  should  be  submitted  "at  the  next  elec- 
tion" after  its  return  by  the  board  of  freeholders  did  not  prohibit 

1  84  Minn.  81.     1901.  » 86  Minn.  136.     1902. 


HOME  RULE  IN  MINNESOTA  463 

e  submission  of  such  charter  at  a  special  election.  This  ruling 
was  in  accordance  with  the .  liberal  interpretation  which  had 
been  put  upon  the  constitutional  provision  in  question  by  the 
legislature ;  for  hi  the  enabling  act  of  1899  1  it  had  been  provided 
that  a  charter  might  be  submitted  at  either  a  general  or  a  special 
election.  In  the  course  of  the  opinion  rendered  in  this  case  the 
court  adverted  to  the  fact  that  the  records  in  the  office  of  the 
secretary  of  state  showed  that  eleven  municipalities  of  the  state 
had  already  ratified  new  charters  or  adopted  charter  amendments 
at  special  elections.  While  the  court  uttered  an  emphatic  dis- 
claimer of  being  influenced  by  this  fact,  "no  matter  what  the 
results  to  public  and  private  interests  might  be,"  and  while  it 
was  admitted  that  the  question  was  not  free  from  doubt,  it  was 
nevertheless  held  that  "if  it  had  been  the  intention  of  the  framers 
of  this  constitutional  amendment  to  forbid  the  submission  of  a 
proposed  charter  at  a  special  election,  it  is  reasonable  to  assume 
that  the  intention  would  have  been  clearly  expressed  by  using 
the  words  'at  the  next  general  municipal  election  thereafter,' 
or  some  similar  phrase." 

There  is  no  doubt  whatever  that  this  interpretation  of  the 
constitution  by  the  court  has  been  of  tremendous  signification 
in  the  advancement  of  the  cause  of  home  rule  in  Minnesota.  It 
is  true  that  some  charter  amendments  (such,  for  example,  as  the 
commission  government  amendment  of  the  St.  Paul  charter  hi 
1912)  have  been  adopted  at  general  elections.  Perhaps,  also, 
new  charters  have,  in  a  few  instances,  been  ratified  at  such  elec- 
tions ;  but  the  vast  majority  of  charters  and  amendments  have 
unquestionably  been  submitted  at  special  elections  because  of  the 
obvious  difficulty  of  securing  an  extraordinary  majority  vote  of 
all  those  who  participate  in  a  general  election. 

A  constitutional  amendment  submitted  in  Minnesota  in  1912 
with  the  object  in  view  of  removing  the  extraordinary  majorities 
required  by  the  constitution  and  of  allowing  charters  and  amend- 
ments to  be  ratified  at  general  elections  by  a  majority  of  those 
voting  on  the  proposition  was  defeated  at  the  polls. 

1  Laws  of  Minn.,  1899,  ch.  351. 


464     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

*  Another  case  disclosing  a  degree  of  liberality  of  view  on  the 
part  of  the  court  toward  the  requirements  of  the  constitution  in 
the  matter  of  home  rule  procedure  was  the  case  of  Wolfe  v.  City 
of  Moorhead.1  The  constitution  required  that  proposed  charter 
amendments  should  be  "  published  for  at  least  thirty  days  in 
three  newspapers  of  general  circulation"  in  a  city  or  village. 
Such  an  amendment  to  the  charter  of  Moorhead  was  published 
in  thirty-seven  issues  of  a  daily  newspaper  during  a  period  of 
thirty-one  days  and  in  five  issues  of  two  weekly  newspapers.  It 
was  insisted  that  the  constitution  required  publication  in  thirty 
issues  of  each  of  the  three  newspapers.  The  court  held  that  this 
construction  was  obviously  unreasonable.  The  requirements  of 
the  constitution  were  satisfied  by  the  publication  of  a  charter 
amendment  begun  in  three  newspapers  on  a  particular  day  and 
continued  in  every  regular  issue  of  such  newspaper  during  a  suc- 
ceeding period  of  thirty  days.  It  mattered  not  how  many  issues 
this  might  include.  It  is  manifest  that  had  the  court  put  any 
other  construction  upon  the  terms  of  the  constitution,  practically 
all  of  the  smaller  cities  and  villages  of  the  state  would  in  effect 
have  been  placed  under  a  serious  handicap  in  the  making  of  charter 
amendments.  Certainly  the  framers  of  the  provision  must  have 
contemplated  the  publication  of  charter  amendments  in  weekly 
newspapers  since  it  is  only  in  sizable  communities  that  three 
daily  publications  are  to  be  found.  Any  other  construction 
than  that  given  by  the  court  would  have  necessitated  the  publica- 
tion of  charter  amendments,  in  all  but  the  largest  cities  of  the 
state,  in  weekly  newspapers  covering  a  period  of  thirty  weeks. 
This  would  have  been  little  short  of  ridiculous. 

Not  many  cases  have  arisen  in  Minnesota  involving  questions 
of  procedure  in  the  making  and  amending  of  home  rule  charters, 
which  procedure  is  determined  in  part  by  constitutional  provision 
and  in  part  by  statute.  It  must  be  conceded,  however,  that  where 
such  questions  have  arisen  the  court  has  shown  a  commendable 
breadth  of  vision.  Of  especial  significance  has  been  the  recogni- 
tion of  the  competence  of  cities  to  submit  charters  and  amendments 

i  98  Minn.  113.     1906. 


HOME  RULE  IN  MINNESOTA  465 

at  special  elections,  without  which  the  exercise  of  the  powers  con- 
ferred would  have  been  placed  under  severe  practical  limitations, 
although  it  may  be  that  the  liberality  of  the  court  in  this  respect  went 
so  far  as  to  exceed  the  bounds  of  a  logical  construction  of  terms. 

What  Powers  may  the  Home  Rule  City  exercise  in  the  Absence  of 
Any  Conflict  with  State  Law  ? 

The  provision  of  the  Minnesota  constitution  expressly  declared 
that  "  before  any  city  shall  incorporate  under  this  act,  the  legisla- 
ture shall  prescribe  by  law  the  general  limits  within  which  such 
charter  shall  be  framed."  Here  was  not  only  explicit  sanction 
but  also  an  implied  mandate  for  the  enactment  of  such  a  law  as 
the  " enabling  act"  passed  by  the  legislature  of  Washington.1 
There  could  be  no  question  whatever  of  the  competence  of  the 
legislature  of  Minnesota  to  expand  or  contract  the  scope  of  home 
rule  powers.  Indeed  it  is  perfectly  apparent  that  under  this 
clause  of  the  home  rule  provision  the  legislature  could,  if  it  chose 
to  do  so,  occupy  the  entire  charter  field.  In  other  words,  it 
could  prescribe  in  such  great  detail  the  limits  within  which  a  free- 
holders' charter  might  be  framed  that  the  matters  which  could  be 
determined  and  regulated  by  the  home  rule  charter  would  be  of 
comparative  insignificance. 

But  the  legislature  of  Minnesota  did  not  elect  to  occupy  the 
charter  field  to  any  considerable  extent.  In  1899  a  so-called 
"enabling  act"  was  passed.2  The  use  of  this  term  "enabling 
act"  in  Minnesota  was  manifestly  appropriate  in  view  of  the 
express  provision  of  the  constitution  noted  above.  The  grant 
of  home  rule  was  not  self -executing  if  action  by  the  legislature  was 
specifically  required  before  any  city  could  avail  itself  of  the  priv- 
ilege conferred.  But  this  act  was  very  brief  in  character.  It 
did  not  essay  to  prescribe  in  much  detail  the  powers  which  the 
home  rule  city  might  exercise  nor  to  prohibit  the  exercise  of  any 
enumerated  list  of  powers.  Neither  did  the  act  attempt  to  out- 
line the  framework  of  the  government  which  might  be  established. 

1  Supra,  400.  2  Laws  of  Minn.,  1899,  ch.  351. 


466     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

In  the  case  of  State  ex  rel.  Getchell  v.  O'Connor  1  the  first  home 
rule  charter  of  St.  Paul  was  attacked  upon  the  ground  that  the 
enabling  act  passed  by  the  legislature  was  insufficient  in  character. 
The  court  refused  to  concur  in  this  view.  To  construe  the  con- 
stitutional provision  in  this  wise,  it  was  declared,  "  would  wholly 
nullify  the  purposes  intended  to  be  subserved  and  secured  by  the 
constitution."  The  opinion  recited  in  part  as  follows : 

A  "broad  framework  for  each  topic"  pertaining  to  a  city  charter 
would  in  itself  be  a  charter,  and  render  the  act  of  the  city  in  framing  one 
nothing  more  than  adopting  therefor  the  legislative  grant  of  power,  and, 
instead  of  exercising  the  right  "to  frame  their  own  charter,"  cities  would 
be  confined  to  what  the  legislature  saw  fit  to  grant  them,  and  nothing 
more.  The  general  power  and  authority  to  frame  city  charters  is  granted 
by  the  constitutional  amendment,  and  ex  necessitate  extends  to  all  powers 
properly  belonging  to  the  government  of  municipalities,  and  the  require- 
ment that  the  legislature  shall  prescribe  limits  within  which  such  charter 
may  be  framed  must  be  construed  to  mean  limits  beyond  which  the 
charter  may  not  go.  In  other  words,  it  is  thus  made  the  duty  of  the  legis- 
lature to  provide  such  general  limitations  and  restrictions  as  that  body 
may  deem  expedient  and  proper.  No  other  interpretation  can  be  placed 
on  this  provision,  consistent  with  the  plain  and  obvious  purpose  and  intent 
of  the  legislature  and  people  in  adopting  the  constitutional  amendment  of 
which  it  is  a  part.  In  obedience  to  the  requirements  of  the  constitution, 
the  legislature  incorporated  in  the  act  in  question  certain  specified  limi- 
tations and  restrictions  upon  certain  subjects,  and  it  is  not  for  the  court 
to  say  that  other  and  further  limits  or  restrictions  should  have  been  im- 
posed. There  was  a  sufficient  compliance  with  the  constitution  in  this 
respect. 

While  the  court  here  held  that  the  legislature  had  properly 
performed  its  duty  of  providing  "such  general  limitations  and 
restrictions  as  it  deemed  proper,"  this  being  a  reasonable  inter- 
pretation of  the  obligation  imposed  upon  the  legislature  by  the 
constitution,  it  must  nevertheless  be  noted  that  it  would  have 
been  wholly  beyond  the  power  of  the  court  to  have  prevented  the 
legislature  from  placing  a  different  construction  upon  the  duty 
imposed  upon  it  by  the  fundamental  law.  In  other  words,  there 
is  no  question  that  the  legislature  could  have  prescribed  to  any 

1  81  Minn.  79.     1900. 


HOME  RULE  IN  MINNESOTA  467 

conceivable  extent  the  limits  within  which  a  charter  might  be 
framed.  Certainly  it  would  have  been  impossible  for  the  court, 
no  matter  what  its  own  concept  of  the  obligation  of  the  legisla- 
ture might  have  been,  to  dissect  a  statute  regulating  in  great 
elaboration  and  detail  the  powers  of  home  rule  cities,  and  to  hold 
that  certain  requirements  were  within  the  competence  of  the 
legislature  while  certain  others  were  beyond  that  competence. 

The  home  rule  cities  of  Minnesota  have  in  fact  been  able  to 
look  to  no  statute  of  the  legislature  which  defined,  described,  and 
delimited  in  any  considerable  detail  the  subjects  which  might  be 
regulated  and  controlled  by  locally  made  charters.  There  have 
been  a  few  cases,  nevertheless,  which  have  involved  the  question 
as  to  whether  in  this  or  that  matter  the  city  had  exceeded  the 
scope  of  powers  included  within  the  grant  of  authority  to  frame 
a  charter  for  its  own  government. 

1 .  Police  departments.     In  State  ex  rel.  Zimmerman  v.  City  of  St. 
Paul l  the  court  was  called  upon  to  construe  the  provisions  of  the 
charter  of  St.  Paul  creating  a  police  commission  and  establishing 
and  regulating  the  police  department.     There  was  in  this  case 
not  the  slightest  intimation  that  the  power  to  control  the  police 
department  was  beyond  the  scope  of  the  city's  competence. 2     In- 
deed the  court  construed  the  charter  in  this  case  precisely  as  if  it 
had  been  a  statute  of  the  legislature,  and  throughout  the  opinion 
that  was  rendered  the  charter  was  referred  to  as  an  "act." 

2.  Police  powers.     Several  cases  involving  the  police  powers  of 
cities  are  of  interest  chiefly  because  they  have  concerned  questions 
quite  similar  to  those  which  have  arisen  in  certain  other  home  rule 
states.     In  the  case  of  the  City  of  St.  Paul  v.  Briggs 3  there  was 
under  review  a  provision  of  the  home  rule  charter  of  the  city  which 
conferred  upon  the  common  council  the  power  "to  define,  re- 
strain, regulate,  and  license  hawkers,  peddlers,  porters,  runners, 
agents,  and  solicitors."     Pursuant  to  this   power   conferred,  the 
council  had  defined  the  term  "  peddler"  to  include  "every  person 
who  shall  sell  or  offer  for  sale  any  goods  ...  or  barter  or  exchange 

1  81  Minn.  391.     1900.  2  Supra,  133,  142,  255,  371. 

s  85  Minn.  290.     1902. 


468  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  same  at  any  point  or  place  within  the  city  of  St.  Paul  other  than 
upon  land  owned  or  leased  by  said  person  or  at  a  store  kept  by 
said  person  or  at  a  stand  at  one  of  the  public  markets."  This 
definition  manifestly  included  persons  who  are  commonly  regarded 
as  agents  rather  than  peddlers.  A  person  who  was  engaged  in  the 
business  of  selling  to,  or  taking  orders  from,  dealers  rather  than 
consumers  was  arrested  for  violating  the  ordinance.  It  was  the 
contention  of  the  city  that  the  definitions  of  the  term  "peddler" 
as  given  by  the  lexicographers  or  found  in  the  adjudicated  cases 
were  wholly  irrelevant  in  view  of  the  fact  that  the  charter  con- 
ferred express  power  upon  the  council  to  define  this  term.  In 
answer  the  court  declared  that  "the  power  to  define  the  offense 
must  be  confined  within  reasonable  bounds,  and  limited  to  the 
generally  accepted  meaning  and  scope  of  the  law  relating  to  that 
subject."  Charters  "must  be  construed  strictly,  and  this  rule 
should  apply  with  special  force  to  cities  authorized  to  form  [sic] 
and  adopt  their  own  charters."  The  opinion  continued: 

If  a  city,  organizing  under  the  constitutional  amendment  empowering 
cities  to  form  their  own  charters,  may  assume  and  clothe  itself  with  power 
to  define  crimes  and  misdemeanors,  it  may  extend  and  enlarge  the  criminal 
laws  of  the  state  to  suit  the  notions  of  its  council.  There  must,  in  the 
nature  of  things,  be  some  limitation  upon  such  authority ;  if  not,  con- 
fusion may  result.  Under  authority  to  define  peddling,  the  ordinances 
of  one  city  might  be  entirely  different  from  those  of  another.  What 
would  constitute  peddling  in  St.  Paul  might  not  in  Minneapolis,  or  in 
Duluth.  It  could  not  well  be  said  that,  if  a  city  was  authorized  to  define 
petit  larceny,  it  could  go  beyond,  in  doing  so,  the  definition  of  the  offense 
as  known  to  the  law  generally.  The  exercise  by  municipal  corporations 
of  the  delegated  power  to  enact  ordinances  must,  therefore,  be  confined 
within  the  general  principles  of  the  law  applicable  to  the  subject  of  such 
ordinances.  Any  other  rule  would  confer  upon  municipal  authorities 
greater  power  than  was  intended  they  should  possess. 

In  last  analysis  this  opinion  probably  went  no  further  than  to 
put  a  very  limited  construction  upon  the  charter  itself  in  its  grant 
of  power  to  the  council  to  "define"  the  term  peddler.  The 
intimation  was  tolerably  clear,  nevertheless,  that  even  if  the 
charter  had  intended  to  confer  upon  the  council  unlimited  com- 


HOME  RULE  IN  MINNESOTA  469 

petence  in  this  regard,  such  a  grant  of  power  would  have  been 
beyond  the  scope  of  the  city's  authority  in  framing  a  charter 
for  its  own  government.  This  case  did  not,  like  the  case  on 
the  same  subject  in  Missouri,1  turn  upon  a  conflict  between 
the  charter  provision  and  a  state  law,  although  a  judgment  nul- 
lifying the  city's  attempted  exercise  of  power  was  reached  in  each 
case. 

The  case  of  City  of  St.  Paul  v.  Haugbro,2  however,  stands  in 
more  striking  contrast  with  the  Missouri  case  which  we  have  noted 
upon  a  similar  subject.3  The  case  involved  the  validity  of  an 
ordinance  which  declared  the  emission  of  " dense  smoke"  to  be  a 
public  nuisance.  Apparently  it  was  not  contended  in  Minnesota, 
as  it  was  in  Missouri,  that  a  home  rule  city  could  not  declare  that 
to  be  a  nuisance  which  was  not  a  nuisance  per  se  and  which  had 
not  been  declared  to  be  a  nuisance  by  a  state  law.  The  city's 
competence  in  this  regard  appears  to  have  been  conceded.  At 
least  the  point  was  not  discussed  by  the  court.  The  validity 
of  the  ordinance  was  assailed  merely  upon  the  ground  that  the 
term  "dense  smoke"  as  used  in  the  ordinance  was  indefinite,  vague, 
and  uncertain.  The  court  asserted  that  while  it  might  be  true 
that  every  emission  of  dense  smoke  in  small  quantities  was  not 
so  offensive  as  to  constitute  a  nuisance,  yet,  following  the  rule  laid 
down  by  the  supreme  court  of  Illinois,4  this  term  would,  without 
any  subtle  distinctions  as  to  its  meaning,  be  understood  as  it  is 
commonly  employed  as  meaning  "a  volume  of  dark,  dense  smoke 
as  it  comes  from  the  smokestack  or  chimney  where  common,  soft, 
or  bituminous  coal  is  used  for  fuel  in  any  considerable  quantities." 
It  was  further  declared  that  there  were  well-known  devices  in 
common  use  for  mitigating  the  evils  caused  by  dense  smoke,  and 
that  the  ordinance  could  not  therefore  inflict  any  special  hardships 
upon  the  consumers  of  such  coal.  This  case  is  of  little  importance 
except  as  it  illustrates  the  liberal  view  of  the  Minnesota  court  as 
compared  with  that  of  the  Missouri  court  upon  the  subject  of  the 
police  power  of  a  home  rule  city. 

1  Supra,  130.  »  93  Minn.  59.     1904.  «  Supra,  181. 

*  Harmon  ».  City  of  Chicago,  110  111.  400.     1884. 


470  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  is  a  fairly  established  rule  of  law  that  local  authorities  may 
not  make  vaccination  compulsory  or  impose  it  as  a  condition  for 
admission  to  the  public  schools  unless  such  action  is  taken  as  an 
emergency  measure  arising  out  of  the  existence  or  danger  of  an 
epidemic  or  unless  the  legislature  of  the  state  has  expressly  con- 
ferred the  power  to  impose  such  a  condition  or  regulation.  In 
1902  there  existed  in  Minnesota  no  statute  conferring  this  power 
upon  the  local  authorities  of  the  state.  There  did  exist,  however, 
an  emergency  in  the  city  of  St.  Paul  for  the  establishment  of  a 
regulation  by  which  children  who  had  not  been  vaccinated 
should  be  excluded  from  the  public  schools.  In  the  case  of  State 
ex  rel.  Freeman  v.  Zimmerman  x  the  competence  of  the  city  to 
impose  such  a  regulation  was  upheld  not  only  upon  the  ground 
that  an  emergency  existed  but  also  upon  the  ground  that  the  home 
rule  charter  of  the  city  conferred  in  definite  and  explicit  terms 
ample  power  to  support  the  action  that  was  taken.  On  this 
latter  point  the  court  declared : 

This  charter  was  enacted  by  the  citizens  under  and  pursuant  to  con- 
stitutional and  legislative  authority,  and  it  was  within  their  power  to 
include  as  a  subject-matter  thereof  provisions  relating  to  a  health  depart- 
ment. Such  a  department  very  properly  belongs  and  is  incident  to  the 
government  of  municipalities  (State  v.  O'Connor,  81  Minn.  79,  83  N.  W. 
498),  and  the  provisions  of  the  charter,  of  which  we  are  required  to  take 
judicial  notice  (Laws  1899,  c.  351),  have  all  the  force  and  effect  of  legis- 
lative enactments. 

This  charter  provides  for  and  creates  a  health  department  for  the  city, 
designating  certain  officers  as  members  of  that  department.  By  section 
2,  c.  10,  the  office  of  commissioner  of  health  is  created ;  and  the  occupant 
of  that  position  is  made  the  head  of  the  department,  and  is  clothed  with 
the  management  and  control  of  all  matters  and  things  pertaining  thereto. 
By  section  25  of  the  same  chapter  the  commissioner  is  empowered  to  make 
such  rules  and  regulations  for  the  government  or  health  of  the  city  as  he 
may,  from  time  to  time,  deem  necessary  and  expedient.  Section  9  makes 
it  his  duty  to  enforce  all  the  laws  of  the  state  and  ordinances  of  the  city 
relating  to  sanitary  regulations,  and  to  cause  all  nuisances  to  be  abated 
with  reasonable  promptness.  Section  15  provides  that  in  case  of  pesti- 
lence or  epidemic  disease,  or  of  danger  of  impending  pestilence,  it  shall 
be  the  duty  of  the  commissioner  to  take  such  measures,  and  to  do  and  order, 

1  86  Minn.  353.     1902. 


HOME  RULE  IN  MINNESOTA  471 

and  cause  to  be  done,  for  the  preservation  of  the  public  health  as  he  may 
in  good  faith  deem  the  public  safety  to  demand.  By  section  16  he  is 
expressly  required  to  take  such  measures  as  may  be  deemed  necessary  to 
prevent  the  spread  of  smallpox,  by  requiring  all  persons  in  the  city  not 
vaccinated  to  be  vaccinated  within  such  time  as  he  shall  prescribe.  Sec- 
tion 33  authorizes  him  to  require  a  certificate  of  vaccination  as  a  condi- 
tion to  the  admission  of  children  to  the  public  schools.  The  authority 
thus  granted  and  the  duties  imposed  are  ample  to  sustain  the  commis- 
sioner of  health  in  the  regulation  ordered  enforced  in  this  instance,  if  the 
general  statutory  provisions  be  insufficient. 

The  significance  of  this  decision  is  this :  the  court  apparently 
took  the  view  that  the  rule  to  the  effect  that  the  authority  to 
require  vaccination  must  be  found  in  an  express  grant  of  authority 
from  the  legislature  did  not  apply  to  a  city  operating  under  a 
freeholders'  charter.  This  grant  of  authority  could  be  found  in 
such  charter  as  well  as  in  a  legislative  enactment,  for  the  reason 
that  such  a  charter  had  all  the  force  and  effect  of  a  legislative  en- 
actment. This  seems  to  have  been  a  fairly  reasonable  construc- 
tion for  the  court  to  follow.  Its  liberality  must  nevertheless  be 
admitted. 

3.  Financial  powers.  Several  questions  have  been  presented 
touching  the  financial  powers  of  home  rule  cities.  In  State  ex  rel. 
Ryan  v.  District  Court  of  Ramsey  County  x  it  was  contended 
that  since  the  power  of  eminent  domain  was  "inherent  in  the 
state,  there  must  be  specific  authority  directly  conferred  by  the 
legislature  to  authorize  the  exercise  of  this  right,"  which  was  not 
expressly  given  by  the  enabling  act  of  1899.  Approving  the 
decision  of  the  Missouri  court 2  upon  this  subject  and  rejecting 
that  of  tbe  Washington  court,3  the  Minnesota  court  declared  : 

In  State  v.  O'Connor,  supra,  we  held,  as  already  stated,  that  the  right 
of  the  city  was  by  the  enabling  act  amply  extended  to  all  powers  properly 
belonging  to  the  government  of  municipalities,  without  being  expressly 
designated  therein,  and  that  the  organization  of  a  police  force  and  the 
appointment  of  its  chief  was  a  municipal  function.  We  are  not  inclined 
to  limit  or  modify  the  effect  of  that  opinion  to  exclude  the  right  of  the 
municipality  to  provide  for  the  exercise  of  the  power  of  eminent  domain. 
Such  right  is  essential  and  necessary  to  the  very  life  and  well-being  of 

1  87  Minn.  146  (1902) ;   infra,  473.  2  Supra,  175.  3  Supra,  430. 


472     THE  LAW  AND   THE  PRACTICE  OF  HOME  RULE 

every  city  government,  for  upon  it  its  welfare  and  progress  beyond  ques- 
tion depend.  It  is  as  necessary  that  there  should  be  streets  and  bridges 
in  a  city,  and  that  they  be  improved  and  extended,  as  that  there  should 
be  a  police  force  to  walk  therein  to  protect  its  inhabitants.  In  the  general 
law  of  the  state  providing  for  the  incorporation  of  cities  this  right  is 
recognized  and  conferred  (G.  S.  1894,  sees.  1106-1172) ;  and,  if  there  is 
to  be  found  in  the  legislative  history  of  the  state  any  special  charter  not 
conferring  the  right  to  take  private  property  for  public  use  upon  just 
compensation  being  first  made  or  secured,  we  have  not  been  referred  to 
it.  We  have  not  seen  it.  We  should  be  surprised  to  find  it;  and,  in 
view  of  the  purpose  of  the  home  rule  amendment  to  the  constitution,  as 
well  as  the  enabling  act  adopted  to  give  it  force,  the  view  is  not  to  be 
accepted  that  a  benefit  was  intended  by  which  an  existing  charter,  having 
them  established  therein,  might  be  superseded  by  one  that  did  not  confer 
these  essential  benefits  to  urban  life.  Hence  the  decision  in  State  v. 
O'Connor,  supra,  is  here  affirmed,  and  extended  to  embrace  this  natural, 
reasonable,  and  necessary  incident  of  municipal  authority. 

In  State  ex  rel.  Otis  v.  District  Court  of  Ramsey  County  1  the 
court  was  asked  to  declare  void  a  provision  of  the  charter  of  St. 
Paul  relating  to  special  assessments.  It  was  held  that  while  the 
charter  provided  "studied  safeguards  to  property  owners  in  original 
assessment  proceedings,"  it  nevertheless  vested  absolute  power 
in  the  board  of  public  works  to  conduct  reassessment  proceedings 
without  any  such  safeguards.  It  was  admitted  that  this  feature 
of  the  charter  had  been  " severely  criticized"  and  that  it  failed 
"to  meet  with  popular  approval."  Even  so,  said  the  court,  "the 
remedy,  if  any,  lies  with  the  people  themselves"  acting  through 
the  medium  of  a  charter  amendment. 

The  principal  contention  put  forward  in  this  case  seems  to  have 
been  that  the  constitution  required  that  "a  mayor  or  chief  magis- 
trate, and  a  legislative  body  of  either  one  or  two  houses"  should 
be  a  "feature"  of  all  freeholders'  charters;  that  the  assessment 
of  property  for  public  improvements  was  a  legislative  function; 
and  that  this  function  must  in  consequence  be  conferred  upon  the 
"legislative  body"  of  the  city  and  not  upon  a  board  of  public 
works.  The  contention  was  manifestly  absurd;  and  the  court 
dismissed  it  by  pointing  out  that  "similar  provisions  for  reassess- 

1  97  Minn.  147.     1906. 


HOME  RULE  IN  MINNESOTA  473 

ment  by  the  board  of  public  works  had  been  embraced  in  the  old 
charter"  of  St.  Paul  and  had  years  previously  been  the  subject 
of  judicial  construction.  It  would  be  patently  unreasonable  to 

mclude  that  the  framers  of  the  home  rule  provision  had  intended 
declare  that  the  duties  of  the  board  of  public  works  "  should 
limited  to  the  elective  body"  of  the  city  by  the  clause  cited, 
which  was  "in  the  most  general  terms." 

There  seem  to  have  been  no  further  cases  in  the  Minnesota 
jurisdiction  involving  questions  of  the  financial  competence  of 
cities  except  those  in  which  a  conflict  between  state  law  and 
charter  provision  was  alleged,1  and  except  the  case  of  Williams  v. 
City  of  St.  Paul,2  where  the  guarantee  of  due  process  of  law  was 
invoked,  but  not  sustained,  to  defeat  an  amendment  to  the  city 
charter  by  which  title  to  property  subject  to  a  special  assessment 
lien  might  without  sale  but  subject  to  redemption  pass  from  the 
owner  by  an  administrative  judgment. 

4.  Power  to  confer  jurisdiction  upon  regular  state  courts.  In  two 
Minnesota  cases  question  has  been  raised  as  to  the  competence 
of  a  home  rule  city  to  confer  jurisdiction  upon  one  of  the 
courts  that  form  a  part  of  the  general  judicial  organization  of  the 
state.  One  of  these  —  State  ex  rel.  Ryan  v.  District  Court  of 
Ramsey  County 3  —  has  already  been  mentioned  above.  In 
addition  to  the  futile  contention  that  was  made  in  that  case  against 
the  authority  of  the  city  to  exercise  the  power  of  eminent  domain 
without  express  grant  from  the  legislature,  it  was  urged  that  the 
particular  provisions  of  the  St.  Paul  charter  upon  this  subject  were 
void  because  they  conferred  upon  the  district  court  jurisdiction 
to  hear  questions  involved  in  the  condemnation  of  property  for 
public  use  and  prescribed  the  methods  by  which  such  issues  should 
be  determined.  It  was  sufficient  to  say,  replied  the  court,  that 
had  the  same  jurisdiction  and  practice  "been  prescribed  by  the 
legislature,  no  question  could  have  been  raised  as  to  the  right  of 
the  courts  to  give  appropriate  judicial  assistance  -in  aiding  the 
results  to  be  secured."  The  mere  fact  that  the  procedure  was  laid 
down  by  the  charter  "created  no  substantial  distinction,  but 

1  Infra,  485.  2 123  Minn.  1.     1913.  3  87  Minn.  146  (1902)  ;   supra,  471. 


474     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

merely  a  formal  difference."  It  was  the  "  conservatism  of  the 
legal  profession"  —  perhaps  justifiable  —  that  often  led  "its 
members  to  suspect  every  new  reform."  The  new  system  "must 
be  subject  to  time  and  experience,"  and  its  efficiency  and  wisdom 
were  in  any  event  "  a  matter  for  the  people  of  the  state  and  not 
for  the  courts"  to  consider. 

Again  the  point  was  pressed  in  State  ex  rel.  Barber  Asphalt 
Paving  Co.  v.  District  Court  of  St.  Louis  County  l  that  the  provi- 
sions of  the  Duluth  charter  regulating  the  manner  in  which  claims 
against  the  city  should  be  presented  were  void  because  they  pro- 
vided for  an  appeal  to  the  district  court  in  case  of  the  disallowance 
and  rejection  of  any  claim  by  the  common  council.  It  was  con- 
tended that  the  jurisdiction  of  such  courts  was  "not  a  subject 
belonging  to  the  government  of  municipalities."  But  the  supreme 
court  had  "no  doubt  that  the  provision  of  the  charter  requiring 
the  presentation  of  all  claims  to  the  city  council  for  adjustment 
and  allowance  was  an  appropriate  subject  for  charter  supervision, 
and  from  that  it  would  seem  to  follow  that  it  was  also  proper  to 
continue  the  subject  and  provide  the  manner  in  which  the  deter- 
mination of  the  city  council  allowing  or  disallowing  a  claim  might 
be  removed  to  the  district  court." 

Here  certainly  was  no  narrow  and  no  uncertain  view  of  the  com- 
petence of  a  home  rule  city  to  confer  upon  a  state  court  whatever 
jurisdiction  in  respect  to  matters  of  municipal  concern  might,  in 
the  opinion  of  the  city,  be  necessary  or  desirable.2  Incidentally 
it  may  be  mentioned  that  a  statute  passed  in  the  same  year  in 
which  decision  was  reached  in  this  case  expressly  conferred  this 
power  upon  home  rule  cities.3 

5.  Exterritorial  powers.  No  case  has  arisen  in  Minnesota  involv- 
ing the  authority  of  a  city  to  provide  in  a  freeholders'  charter  for 

i  90  Minn.  457.     1903.  2  Supra,  193. 

'Laws  of  Minn.,  1903,  ch.  238,  sec.  9.  "For  the  economical  and  proper  opera- 
tion of  the  government  created  by  such  charter,  or  its  amendments,  provision  may  be 
made  therein  for  methods  of  procedure  and  the  performance  of  duties  by  the  courts 
of  the  district  and  officers  of  the  county,  in  which  such  city  or  village  is  situated, 
not  inconsistent  with  the  provisions  of  the  constitution  and  statutes  of  this  state,  and 
such  courts  and  officers  shall  perform  the  duties  so  prescribed  in  this  connection." 


HOME   RULE  IN  MINNESOTA  475 

the  annexation  of  territory.1  The  probable  reason  for  this  is  that  no 
such  charter  has  ever  attempted  to  control  the  matter  of  annexa- 
tion. Nor  is  this  matter  specifically  provided  for  in  the  enabling 
act.  The  only  mention  of  the  subject  in  this  act  is  that  "  nothing 
in  this  section  shall  authorize  a  change  of  boundaries."  Pre- 
sumably it  is  regulated  by  the  laws  applicable  to  the  several  classes 
of  cities  created  by  the  constitution,  which  as  we  shall  see 2  apply 
to  home  rule  cities  as  well  as  to  cities  under  legislative  charters. 

In  one  case,  however,  City  of  Duluth  v.  Orr,3  an  issue  of  some- 
what related  character  was  presented  to  the  court.  The  charter 
of  Duluth  expressly  empowered  the  common  council  to  regulate  or 
prohibit  the  storage  of  combustibles  or  explosive  materials  "  within 
the  city  or  within  one  mile  from  the  limits  thereof."  The  council 
by  ordinance  prohibited  such  storage  without  a  permit  from  the 
city  and  extended  this  prohibition  to  embrace  the  one-mile  limit. 
Denying  the  validity  of  this  charter  provision  and  the  ordinance 
enacted  pursuant  thereto,  the  court  said : 

By  the  constitutional  amendment  a  city  is  permitted  to  frame  a  char- 
ter "for  its  own  government."  This  language  contains  no  express  au- 
thority to  frame  a  charter  for  the  government  of  territory  or  people  not 
a  part  of  or  within  the  city.  If  such  power  is  conferred,  it  is  by  implica- 
tion as  an  incident  to  the  internal  government  of  the  city.  The  limitation 
in  section  751,  R.  L.  1905,  the  section  containing  the  general  grant  of 
power,  that  "nothing  in  this  section  shall  authorize  a  change  of  boun- 
daries," is  significant.  The  power  to  enlarge  its  boundaries  being  with- 
held from  the  city,  the  power  to  exercise  authority  and  control  beyond 
its  boundaries  cannot  be  fairly  implied.  .  .  . 

An  express  grant  by  the  legislature  to  a  municipality  of  extraterritorial 
dominion  rests  on  a  very  different  basis.  The  right  given  to  the  people 
within  prescribed  territorial  limits  to  adopt  a  complete  municipal  code 
does  not  warrant  the  assumption  by  them  of  power  over  territory  and 
people  beyond  those  limits,  even  though  the  control  of  such  territory 
and  people  would  be  convenient  and  gratifying  to  the  people  within  the 
city.  The  practical  difficulties  involved  in  the  assumption  by  cities  of 
such  power  are  apparent.  Innumerable  conflicts  in  authority  would  in- 
evitably follow.  Such  a  result  is  not  reasonably  within  the  purview  of  the 
constitutional  amendment.  The  ordinance,  with  the  violation  of  which  the 
defendant  was  charged,  is,  as  to  territory  beyond  the  city  limits,  invalid. 

1  Supra,  146,  269,  333,  407.  2  Infra,  493  ff.  3  115  Minn.  267.    1911. 


476  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Under  the  doctrine  thus  laid  down  —  and  its  soundness  is  quite 
unimpeachable  —  there  seems  to  be  no  doubt  that  had  the  compe- 
tence of  the  city  to  provide  for  the  annexation  of  territory,  even 
in  the  absence  of  the  express  prohibition  of  the  enabling  act,  been 
arraigned  before  the  court,  such  competence  would  have  been 
denied. 

6.  Power  to  establish  the  commission  form  of  government. 
Finally,  as  bearing  upon  the  simple  question  of  the  scope  of 
powers  enjoyed  by  the  city  under  the  grant  of  authority  to  adopt 
a  charter,  may  be  mentioned  the  case  of  State  ex  rel.  Simpson  v. 
City  of  Mankato.1  The  constitution,  as  we  have  noted,  required 
that  "a  mayor  or  chief  magistrate,  and  a  legislative  body  of  either 
one  or  two  houses"  should  be  a  " feature  of  all  such  charters." 
By  a  state  law  of  1909,  which  was  in  fact  in  the  nature  of  an  addi- 
tion to  the  enabling  act,  boards  of  freeholders  were  empowered  to 
draft  and  submit  charters  providing  a  commission  form  of  govern- 
ment.2 It  was  contended  that  such  a  form  of  government  was  in 
violation  of  the  constitution  because  the  term  "mayor  or  chief 
magistrate"  comprehended  "an  official  clothed  with  executive 
power  and  executive  power  only,"  and  because  the  "legislative 
body"  required  was  a  "body  of  officials  who  are  endowed  with 
legislative  powers  and  legislative  powers  only."  A  charter  which 
made  the  mayor  an  integral  part  of  the  legislative  body  and 
which  vested  in  that  body  both  executive  and  legislative  powers 
could  not,  it  was  asserted,  be  sustained  as  being  within  the 
contemplation  of  the  constitution. 

Even  though  it  be  admitted  that  the  mayor-and-council  type 
of  city  government  was  at  the  time  of  the  adoption  of  this  constitu- 
tional provision  in  1898  —  and  for  that  matter  still  is  —  a  highly 
various  thing,  it  seems  patent  that  this  was  the  "general"  type 
of  government  which  the  framers  of  the  provision  had  in  mind 
when  they  called  for  a  mayor  or  chief  magistrate  and  a  legislative 
body.  Commission  government,  embodying  at  least  one  fundamen- 
tal departure  from  the  mayor-and-council  type,  had  not  as  such  been 
heard  of  in  1898.  The  court  could  scarcely  have  been  accused  of 

1  117  Minn.  458.     1912.  2  Laws  of  Minn.,  1909,  ch.  170. 


HOME  RULE  IN  MINNESOTA  477 

narrowness  of  view  had  the  rule  been  applied  that  the  terms  of 
a  constitution  must  be  construed  in  the  light  of  their  probable 
meaning  at  the  time  of  their  writing.  Thus  construed,  the  provi- 
sion here  in  question  might  not  unreasonably  have  been  held  to 
sustain  the  contention  that  was  made.  But  since  the  court  found 
little  difficulty  in  reaching  an  opposite  conclusion  it  seems  worth 
while  to  set  down  a  part  of  the  argument  that  was  advanced : 1 

The  first  and  main  question,  then,  for  determination  in  this  case,  is, 
not  whether  the  Constitution  authorized  the  law  of  1909,  but  whether 
such  act  contravenes  any  provision  thereof.  Assuming  for  the  moment 
that  such  act  authorizes  the  Mankato  charter,  does  it  transcend  the  con- 
stitutional requirement  that  such  a  charter  must  provide  for  a  "mayor 
or  chief  magistrate,  and  a  legislative  body"?  and  is  the  said  charter  "in 
harmony  with  and  subject  to  the  Constitution"?  Obviously,  this  in- 
volves the  determination  of  the  meaning  of  the  terms  "mayor  or  chief 
magistrate"  and  "legislative  body."  The  relator  first  contends  that  the 
obvious  meaning  of  these  terms  excludes  the  conception  of  any  partici- 
pation by  one  of  the  departments  thus  indicated  in  the  functions  of  the 
other,  and  in  support  of  this  contention  urges  that  this  exclusive  mean- 
ing of  the  terms  must  be  held  to  have  been  contemplated  when  the  said 
requirement  was  inserted  in  the  Constitution,  for  the  reason  that  such  was 
the  common  acceptation  of  such  terms  at  that  time.  To  this  contention 
and  argument  there  are  two  replies,  which  to  us  seem  conclusive : 

First,  the  question  is,  not  whether  the  people,  in  adopting  this  pro- 
vision, had  in  mind  any  such  city  charter  provisions  as  those  now  under 
consideration  and  were  endeavoring  to  make  anticipatory  provision 
therefor,  but  whether,  having  in  mind  the  possibility  of  some  future 
attempt  thus  to  intermingle  the  functions  of  the  executive  and  the  legis- 
lative departments  of  municipal  government,  they  were  attempting  in 
advance  to  frustrate  any  such  attempt. 

"Constitutions  are  not  made  for  existing  conditions  only,"  said  Mr. 
Justice  Brown  in  Elwell  v.  Comstock,  99  Minn.  261,  265,  109  N.  W.  698, 
699,  7  L.  R.  A.  (N.  S.)  621,  9  An.  Cas.  270,  "nor  in  the  view  that  the 
state  of  society  will  not  advance  or  improve,  but  for  future  emergencies 
and  conditions,  and  their  terms  and  provisions  are  constantly  expanded 
and  enlarged  by  construction  to  meet  the  advancing  and  improving 
affairs  of  men." 

Unless,  therefore,  it  can  be  said  that  the  constitutional  limitation  now 
under  consideration  was  intended  to  exclude  the  mayor  or  chief  magis- 
trate of  a  home  rule  city  or  village  from  the  deliberations  of  the  legisla- 

1  For  a  similar  but  not  identical  Washington  case,  see  supra,  452. 


478  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tive  body  thereof,  and  to  prohibit  the  latter  from  exercising  executive 
and  administrative  functions,  the  relator's  contention  cannot  prevail, 
at  least  so  far  as  it  is  based  upon  the  obvious  and  unambiguous  meaning 
of  the  terms  used.  We  do  not  think  that  by  the  use  of  these  terms  such 
an  intention  is  indicated  with  that  clearness  and  particularity  necessary 
to  vitiate  a  solemn  enactment  of  the  legislature ;  for  under  the  doctrine 
laid  down  by  Brown,  J.,  supra,  the  legislature,  unless  plainly  restricted 
by  the  Constitution,  had  the  right  to  place  upon  such  terms  an  interpre- 
tation that ''would  meet  the  advancing  and  improving  affairs  of  men."  .  . 
Since,  therefore,  it  cannot  be  said  that  the  terms  used  in  the  constitu- 
tional provision  under  consideration,  either  of  themselves  or  when  con- 
strued in  the  light  of  conditions  prevailing  when  they  were  inserted  in 
the  Constitution,  precluded  the  legislature  from  authorizing  the  provisions 
of  the  Mankato  charter  here  attacked,  we  must  seek  some  other  reason, 
if  any  there  be,  why  the  said  act  of  1909  and  the  said  charter  are  invalid. 

The  court  refused  to  sustain  any  of  the  other  contentions  that 
were  made  against  the  validity  of  the  law  and  in  conclusion  held 
that  the  commission  government  charter  of  Mankato  was  clearly 
authorized  by  the  statute.  It  should  be  noted,  however,  that  the 
court  vested  its  judgment  in  the  case  largely,  if  not  wholly,  upon 
the  fact  that  the  legislature  had  by  the  statute  of  1909  expressly 
empowered  cities  to  adopt  charters  providing  this  type  of  govern- 
ment. In  so  doing  the  legislature  had  placed  an  interpretation 
upon  the  constitutional  clause  in  question,  which  interpretation 
assumed  that  cities  were  not  thereby  restricted  to  providing  a 
government  of  the  old  mayor-and-council  form.  The  query 
naturally  arises  whether  the  court  would  have  sustained  the  right 
of  the  city  to  introduce  commission  government  in  the  absence 
of  any  legislative  grant  of  authority.  There  could  be  no  question 
that  the  legislature  might  have  prohibited  either  expressly  or 
impliedly  the  adoption  of  a  charter  providing  such  a  government, 
for  the  constitution  directly  empowered  the  legislature  to  prescribe 
the  limits  within  which  freeholders'  charters  might  be  framed. 
But  if  no  limits  had  been  set  of  such  a  character  as  to  prohibit 
commission  government,  was  an  express  grant  of  legislative  au- 
thority none  the  less  necessary? 

Under  the  views  expressed  by  the  court,  in  spite  of  the  reliance 
placed  upon  the  statute  of  1909,  it  is  impossible  to  understand  why 


HOME  RULE  IN  MINNESOTA  479 

a  specific  investment  of  power  was  essential.  In  enacting  the  law 
the  legislature  had  in  effect  interpreted  the  constitution.  The 
court  was  engaged  in  considering  whether  this  interpretation  was 
permissible  and  concluded  that  it  was.  Every  city  was  empowered 
to  adopt  a  charter  within  the  limits  prescribed  by  the  legislature 
and  the  constitution.  If  no  prohibitive  limits  had  been  prescribed 
by  the  legislature,  and  if  the  city  had  without  express  authoriza- 
tion adopted  a  charter  of  the  commission  government  variety, 
the  court  would  obviously  have  been  compelled  to  consider  whether 
the  city's  interpretation  of  the  constitutional  provision  in  question 
was  justifiable.  Under  such  circumstances  the  question  before 
the  court  would  have  been  precisely  what  it  was  in  fact  —  to  wit, 
does  the  constitution  prohibit  this  form  of  city  government? 
The  opinion  of  the  court  upon  this  point  was  unmistakable. 
Prior  to  the  adoption  of  the  statute  of  1909  the  legislature  had 
declared  that,  subject  to  the  few  limitations  of  the  enabling  act, 
a  home  rule  "  charter  and  its  amendments  may  provide  for  any 
form  and  scheme  of  municipal  government,  and  may  embrace 
provisions  for  the  regulation,  management,  administration,  and 
control  of  all  departments  of  the  city  government  and  of  all  local 
municipal  government  functions,  as  fully  and  comprehensively 
as  could  the  statutes  of  the  state  of  Minnesota  had  section  33  of 
article  4  of  the  constitution  not  been  adopted."  1  The  conclusion 
seems  unavoidable  that  under  the  view  of  the  constitution  taken 
by  the  court,  the  statute  conferring  express  power  to  institute 
the  commission  form  of  government  was  supererogatory.  In  the 
absence  of  such  statute  the  city  would  have  enjoyed  this  compe- 
tence from  the  constitution  and  from  the  enabling  act  as  it  stood. 
From  the  above  review  of  cases  determining  questions  as  to 
the  powers  of  home  rule  cities  in  the  absence  of  any  conflict  be- 
tween charter  provisions  and  state  laws,  it  is  apparent  that  the 
Minnesota  court  has  been  far  more  liberal  than  otherwise.  From 
this  fact,  however,  wholly  erroneous  conclusions  respecting  the 

1  Laws  of  Minn.,  1903,  ch.  238,  sec.  9.  Section  33  of  article  4  of  the  constitution, 
referred  to  in  this  law,  was  adopted  in  1892  and  prohibited  special  legislation  for 
cities. 


480     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

conditions  of  home  rule  in  this  state  might  easily  be  drawn.  These 
conditions  cannot  be  understood  without  a  full  consideration  of 
the  relation  of  supremacy  and  inferiority  between  state  laws  and 
charter  provisions. 

Conflicts  between  Charter  Provisions  and  Previously  Enacted  State 

Laws 

Attention  has  been  directed  to  the  provision  of  the  Minnesota 
constitution  which  imposed  upon  the  legislature  the  duty  of 
prescribing  the  limits  within  which  freeholders'  charters  might  be 
framed,  and  to  the  fact  that  the  legislature  did  not  in  the  enabling 
act  prescribe  many  such  limits,  although  it  is  manifest  that  had  it 
chosen  to  do  so,  it  might  have  proceeded  to  any  extent  in  this  re- 
gard. Certain  other  clauses  of  the  Minnesota  provision  must  also 
be  noted  in  this  connection :  (1)  Upon  adoption,  a  home  rule 
charter  was  declared  to  "  supersede  any  existing  charter  and  amend- 
ments thereof."  (2)  Such  charter  was  required  to  be  always  "in 
harmony  with  and  subject  to  the  constitution  and  laws  of  the 
state."  (3)  The  legislature  might  "provide  general  laws  relating 
to  the  affairs  of  cities"  applicable  to  several  classes  established  by 
the  constitution  itself,  and  such  laws  should  "apply  equally  to 
all  such  cities  of  either  class,"  and  should  "be  paramount  while 
in  force  to  the  provisions  relating  to  the  same  matter  included  in 
the  local  charter  herein  provided  for."  This  term  "local  charter" 
manifestly  meant  freeholders'  charter,  for  no  other  kind  of  local 
charter  was  provided  for  in  the  section. 

Before  discussing  broadly  the  ultimate  meaning  and  the  concrete 
result  of  these  several  declarations  of  the  constitution,  it  seems 
advisable  to  set  in  review  the  cases  which  have  construed  and  ap- 
plied them.  These  cases,  for  reasons  that  will  shortly  appear,  have 
not  been  numerous. 

1.  Contracts  for  public  improvements.  The  leading  case  upon 
this  subject  of  conflicts  between  laws  and  charters  is  Grant  v. 
Berrisford.1  The  issue  before  the  court  in  this  case  was  whether 

i  94  Minn.  45.     1904. 


HOME  RULE  IN  MINNESOTA  481 

a  state  law  of  18971  regulating  the  letting  of  contracts  for  public 
improvements  and  the  giving  of  bonds  by  contractors  controlled 
the  provisions  of  the  freeholders'  charter  of  St.  Paul.  The  charter 
provisions  differed  from  those  of  the  law,  first,  in  respect  to  the 
amount  of  the  bond,  and  second,  in  that  the  charter  omitted  to 
require  that  on  any  claim  notice  should  be  given  to  the  principal  and 
surety  within  ninety  days  after  the  completion  of  the  work,  which 
notice  should  specify  the  nature  and  amount  of  the  claim.  It  was 
contended  that  this  general  law,  enacted  three  years  before  the 
adoption  of  the  local  charter,  was  "  applicable  to  the  city  of  St. 
Paul,  notwithstanding  its  charter  provisions."  The  court  de- 
clared that  the  only  question  presented  by  this  contention  was 
"whether  the  charter  provisions  relating  to  contractors'  bonds 
are  in  harmony  with  and  subject  to  the  constitution  and  laws  of 
the  state,  as  required  by  the  constitutional  amendment."  Speak- 
ing specifically  to  this  requirement,  the  opinion  recited  : 

If  this  limitation  on  the  power  of  cities  in  framing  their  charters  is  to 
be  construed  as  prohibiting  the  adoption  of  any  charter  provisions  relat- 
ing to  proper  subjects  of  municipal  legislation  and  matters  germane 
thereto,  unless  they  are  similar  to  and  contain  all  the  provisions  of  the 
general  laws  on  the  subject,  then,  as  said  by  the  learned  trial  judge: 
"All  that  the  framers  of  a  charter  can  do,  where  there  is  a  law  in  existence 
at  the  time  the  charter  is  adopted,  is  to  add  such  provisions  as  are  not 
already  contained  in  the  law,  and  are  not  repugnant  to  it.  If  this  is  the 
extent  of  the  power  conferred  upon  cities  to  make  their  own  charters, 
then  the  constitutional  grant  is  a  mere  form  of  words,  of  no  practical 
value."  It  is  clear  that  such  is  not  a  proper  construction  of  the  limitation. 
This  limitation  forbids  the  adoption  of  any  charter  provisions  contrary 
to  the  public  policy  of  the  state,  as  declared  by  general  laws,  or  to  its  penal 
code  —  for  example,  provisions  providing  for  the  licensing  of  prize  fight- 
ing or  gambling  or  prostitution,  or  those  which  are  subversive  of  the 
declared  policy  of  the  state,  as  to  the  sale  of  intoxicating  liquor.  But  it 
does  not  forbid  the  adoption  of  charter  provisions  as  to  any  subject  appro- 
priate to  the  orderly  conduct  of  municipal  affairs,  although  they  may 
differ  in  details  from  those  of  existing  general  laws.  This  is  necessarily 
so,  for  otherwise  effect  could  not  be  given  to  the  constitutional  amendment, 
which  fairly  implies  that  the  charter  adopted  by  the  citizens  of  a  city 
may  embrace  all  appropriate  subjects  of  municipal  legislation,  and  con- 

1  Laws  of  Minn.,  1897,  ch.  307. 


482  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

stitute  an  effective  municipal  code,  of  equal  force  as  a  charter  granted  by 
a  direct  act  of  the  legislature.  State  v.  O'Connor,  81  Minn.  79,  83  N.  W. 
498 ;  State  v.  District  Court  of  Ramsey  Co.,  87  Minn.  146,  91  N.  W.  300 ; 
State  v.  District  Court  of  St.  Louis  Co.,  90  Minn.  457,  97  N.  W.  132. 

It  follows  that  if  the  provisions  of  the  charter  of  St.  Paul  as  to  con- 
tractors' bonds  are  germane  to  any  proper  subject  for  municipal  legisla- 
tion, they  supersede  the  provisions  of  the  general  law  on  the  subject. 
It  is  practically  conceded  by  the  defendants  that  the  subject  of  contracts 
with  the  city,  and  the  form,  contents,  and  execution  of  the  bond  required 
of  contractors  who  undertake  to  do  public  work,  is  a  proper  one  for  mu- 
nicipal legislation.  But  they  contend  that  the  city  has  no  interest  in  the 
matter  of  a  limitation  on  the  right  of  any  one,  except  itself,  to  bring  an 
action  on  the  bond.  The  provision  in  the  general  law  requiring  notice 
within  ninety  days  after  the  last  item  of  labor  or  materials  is  done  or  per- 
formed, before  bringing  an  action  on  the  bond,  is  not  analogous  to  a  statute 
of  limitations,  but  it  is  a  condition  precedent  which  must  be  performed 
before  the  right  to  bring  an  action  on  the  bond  accrues.  Or  in  other 
words,  it  is  a  condition  or  burden  placed  upon  the  beneficiaries  of  the  bond 
which  they  must  perform  or  remove  before  they  can  avail  themselves  of 
its  benefits.  It  is  as  much  so  as  would  be  the  case  if  this  provision  of  the 
general  statute  was  set  out  as  a  proviso  in  the  bond. 

Now,  the  prompt  payment  by  the  contractor  for  labor  and  materials 
used  in  the  execution  of  a  contract  with  the  city  for  public  improvements 
is  a  matter  in  which  the  city  has  a  direct  interest.  Such  payment  is 
necessary  to  secure  a  speedy  and  honest  performance  of  the  contract, 
for  it  has  a  direct  tendency  to  avoid  labor  strikes,  and  the  withholding  of 
materials  for  the  work  by  materialmen.  Any  condition  or  burdens  which 
delay  or  make  the  enforcement  of  contractors'  bonds  more  difficult  or 
uncertain  tend  to  increase  the  cost  of  labor  and  materials  necessary  for 
the  execution  of  contracts  with  the  city  for  making  public  improvements. 

We  hold,  then,  that  the  subject  of  city  contracts  for  public  improve- 
ments, and  bonds  to  secure  performance  of  them  and  the  payment  of 
laborers  and  materialmen,  is  a  proper  one  for  municipal  legislation,  and 
that  the  matter  of  contractors'  bonds,  and  conditions  and  limitations  as 
to  their  enforcement,  is  germane  thereto.  State  v.  District  Court  of  St. 
Louis  Co.,  supra.  If  follows  that  the  charter  provision  in  question  is 
exclusive,  and  that  the  plaintiffs  in  this  case  were  not  bound  to  give  the 
notice  required  by  the  general  statute  as  a  condition  precedent  to  their 
right  to  sue  on  the  contractors'  bond. 

If  this  decision  is  analyzed  in  the  light  of  the  declarations  of  the 
constitution  which  apparently  attempt  to  fix  the  relation  between 
state  laws  and  charter  provisions,  the  following  points  may  be  noted  : 


HOME  RULE  IN  MINNESOTA  483 

(1)  The  requirement  that  the  charter  should  conform  to  "  limits  " 
prescribed  by  the  legislature  was  ignored.     The  statute  here  under 
review  did  not  specifically  apply  to  home  rule  cities.     It  was 
enacted  before  the  adoption  of  the  home  rule  amendment.     It  was 
made  applicable  to  all  cities.     From  this  fact  the  rule  may  doubt- 
less be  said  to  have  been  implied  that  the  "general  limits"  within 
which  a  freeholders'  charter  might  be  framed  were  not  to  be  found 
in  the  general  city  laws  that  existed  at  the  time  of  the  adoption 
of  such  charter  but  only  in  such  general  laws  as  were  exclusively 
applicable  to  home  rule  cities  —  laws  which  clearly  purported  to 
set  the  metes  and  bounds  of  the  competence  of  this  particular 
kind  of  cities.     This  was  probably  a  wholly  reasonable  interpre- 
tation of  this  provision  of  the  constitution. 

(2)  Decision  was  not  reached  in  the  case  upon  the  ground  that 
the  law  of  1897,  although  a  general  law,  constituted  nevertheless  a 
part  of  the  legislative  charter  of  St.  Paul  and  was  therefore  re- 
pealed by  the  operation  of  the  provision  which  declared  that  the 
home  rule  charter  should  "  supersede  any  existing  charter  and 
amendments  thereof."     On  the  whole  this  would  seem  to  have 
been  the  most  available  argument  of  logic  that  the  court  could  have 
used.     It  was  not,  however,  employed. 

(3)  No  reference  was  made  by  the  court  to  the  clause  of  the  con- 
stitution which  empowered  the  legislature  to  "provide  general 
laws  relating  to  the  affairs  of  cities,"  which  should  be  applicable  to 
the  cities  of  any  constitutional  class,  and  which  should  be  "  para- 
mount" to  the  provisions  of  a  freeholders'  charter.     Since  the  law 
in  question  applied  to  all  cities  and  therefore  to  all  classes  of  cities, 
it  certainly  fell  within  the  category  of  "general  laws  relating  to 
the  affairs  of  cities"  and  applicable  to  classes.     It  was  expressly 
held  to  be  a  law  relating  to  the  affairs  of  cities.     The  only  possible 
ground,  it  would  seem,  on  which  the  court  could  have  excluded  it 
from  the  category  of  laws  referred  to  in  this  particular  declaration 
of  the  home  rule  amendment  was  that  it  was  a  law  enacted  prior 
to  the  adoption  of  the  amendment  and  of  the  charter  made  in 
pursuance  thereof.     In  other  words,  had  this  statute  been  passed 
after  the  charter  was  adopted,  it  is  difficult  to  see  how  the  court 


484     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

could  have  avoided  the  conclusion  that  it  was  "paramount  to  the 
provisions  relating  to  the  same  matter  included  in  the  local  char- 
ter." The  court  did  not  in  any  wise  advert  to  nor  discuss  this 
aspect  of  the  subject.  But  the  plain  words  of  the  constitution 
cannot  on  this  account  be  ignored.  The  only  fair  deduction  seems 
to  be  that  the  silence  of  the  court  implied  the  rule  here  indicated  — 
to-wit,  that  this  requirement  of  the  constitution  did  not  embrace 
those  general  laws  regulating  municipal  affairs  which  were  enacted 
before  the  amendment  and  the  charter  were  adopted. 

(4)  The  opinion  turned  wholly  upon  a  construction  placed  by 
the  court  on  the  provision  that  required  freeholders'  charters  to 
be  always  "in  harmony  with  and  subject  to  the  constitution  and 
laws  of  the  state."  This  was  the  only  clause  of  the  home  rule 
amendment  that  was  specifically  mentioned.  The  distinction 
between  matters  of  state  and  matters  of  local  concern  was  unmis- 
takably read  into  this  provision  by  the  court.  Without  this 
distinction  the  grant  of  authority  to  frame  a  charter  would  be  a 
"mere  form  of  words,  of  no  practical  value."  The  subject  under 
review  in  the  case  was  one  "appropriate  to  the  orderly  conduct 
of  municipal  affairs,"  and  therefore  the  charter  provisions  "super- 
sede the  provisions  of  the  general  law  on  the  subject." 

As  to  the  soundness  of  this  view,  it  is  sufficient  to  note  that  there 
was  certainly  nothing  in  the  amendment  that  implied  any  such 
meaning  except  the  naked  grant  of  authority  to  frame  a  charter, 
and  there  was  much  that  implied  the  contrary.  The  term  "laws," 
which  charters  were  required  to  be  "in  harmony  with  and  subject 
to,"  was  not  even  qualified  by  the  term  "general,"  which  the  court 
might  have  interpreted  to  mean  of  general  as  distinguished 
from  municipal  concern.  On  the  other  hand,  the  legislature  was 
expressly  empowered  to  set  the  limits,  even  as  to  strictly  municipal 
affairs,  within  which  charters  might  be  framed,  and  to  enact  laws 
applying  to  classes  of  cities  and  relating  to  strictly  municipal 
affairs  which  should  be  paramount  to  home  rule  charter  provisions. 
In  view  of  these  facts  it  is  difficult  to  see  why  the  court  should  have 
been  so  alarmed  at  the  possibility  of  construing  the  grant  of  author- 
ity to  frame  a  charter  in  such  wise  as  to  render  it  "a  mere  form  of 


HOME  RULE  IN  MINNESOTA  485 

words,  of  no  practical  value."  If  the  words  of  the  constitutional 
provision  are  to  be  given  their  commonly  accepted  connotation, 
this  is  precisely  what  the  Minnesota  grant  of  home  rule  powers 
amounted  to.  The  constitution  unmistakably  recognized  the 
competence  of  the  legislature  to  encroach  upon  these  powers  to 
the  point  of  complete  destruction  if  it  so  elected;  and  therefore 
the  grant  of  authority  to  adopt  a  charter  was  in  plain  fact  nothing 
whatever  but  a  mere  form  of  words.  Moreover,  as  we  shall  see  a 
little  later,  home  rule  in  actual  operation  in  Minnesota  has  been  to 
a  very  considerable  extent  a  form  of  words  and  to  its  entire  extent 
a  matter  of  legislative  concession  rather  than  of  constitutional 
right.1 

2.  Special  assessments.  The  rule  of  the  Grant  case  was  reap- 
plied  in  Turner  v.  Snyder.2  In  1906  the  city  of  Crookston  adopted 
a  charter  which  provided  that  proposals  for  street  improvements 
should  originate  with  the  council  and  which  contained  no  provision 
for  the  payment  of  special  assessments  upon  the  instalment  plan. 
A  general  state  law  of  1899,  amending  a  law  of  1895,  allowed  the 
council  upon  a  petition  of  three-fourths  of  the  property  owners  to 
divide  an  assessment  for  such  purposes  into  instalments.  The 
council  of  Crookston,  acting  upon  a  petition  filed  in  pursuance  of 
this  statue,  was  proceeding  to  contract  for  a  street  improvement  to 
be  paid  for  on  the  instalment  plan  when  injunction  was  sought. 
In  granting  the  injunctive  relief  prayed  for  the  court  examined  the 
freeholders'  charter  and  concluded  that  its  framers  had  not  in- 
tended to  provide  two  methods  of  assessment  —  one  under  the 
general  law  upon  the  instalment  plan,  and  another  upon  practi- 
cally a  cash  basis.  The  doctrine  of  Grant  v.  Berrisford  was  de- 
clared to  control  the  decision  of  the  case  at  bar.  Since  the  subject 
of  assessments  was  " comparatively  covered"  by  the  charter 
there  could  be  no  question  that  the  general  law  had  been  super- 
seded. Said  the  court : 

The  rule  of  construction  applicable  in  a  case  of  this  character  is  differ- 
ent from  the  rule  applied  where  the  question  is  whether  a  subsequent 
general  law  superseded  a  special  law  on  the  same  subject.  ...  In  cases 

1  Infra,  493  ff.  »  101  Minn.  481.     1907. 


486     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

like  the  one  under  consideration,  where  the  charter  covers  the  entire 
subject-matter,  the  intention  to  supersede  all  general  laws  on  the  subject 
will  be  presumed  unless  otherwise  expressed. 

The  only  point  in  which  this  case  differed  from  the  Grant  case 
was  that  the  statute  under  review  had  been  enacted  subsequent 
to  the  adoption  of  the  home  rule  amendment  although  prior  to 
the  adoption  of  the  home  rule  charter.  The  significance  of  this 
point,  which  was  not  mentioned  in  the  opinion,  will  be  adverted 
to  in  a  later  connection.1 

3.  Debt  limits.  The  enabling  act  of  1899  imposed  a  five  per 
cent,  debt  limit  upon  cities.2  In  1903  this  was  raised  to  ten  per 
cent,  for  cities  of  less  than  fifty  thousand  inhabitants;  but  for 
cities  of  more  than  this  population  it  was  provided  that  the  five 
per  cent,  limit  could  not  be  exceeded  except  upon  a  referendum 
to  the  voters  of  any  proposal  to  issue  bonds  or  except  for  certain 
specified  purposes.3  Several  cases  have  arisen  involving  the  con- 
struction and  application  of  these  debt  limit  provisions,4  which 
were  manifestly  within  the  competence  of  the  legislature  to  impose. 
In  only  one  of  these  cases  has  any  question  been  raised  that  is  of 
interest  in  connection  with  our  study.  In  American  Electric  Co.  v. 
City  of  Waseca  6  the  absurd  contention  was  urged  that  although 
the  enabling  act  clearly  authorized  an  indebtedness  equal  to  ten 
per  cent,  of  the  assessed  valuation  of  property  within  a  city  of 
Waseca's  population,  yet  a  five  per  cent,  limit  was  imposed  upon 
all  cities  by  a  general  statute  of  1894.  It  is  as  difficult  to  compre- 
hend how  counsel  should  have  been  willing  to  stultify  themselves 
by  putting  this  contention  forward  as  it  is  to  understand  why  the 
court  in  refusing  to  sustain  such  contention  should  have  considered 

1  Infra,  493  ff. 

2  Laws  of  Minn.,  1899,  ch.  351,  sec.  10. 

3  Laws  of  Minn.,  1903,  ch.  238,  sec.  9. 

4  Christie  v.  City  of  Duluth,  82  Minn.  202  (1901) ;   Beck  v.  City  of  St.  Paul  87 
Minn.  381  (1902)  ;  White  Townsite  Co.  v.  City  of  Moorhead,  120  Minn.  1  (1912). 
In  this  last-mentioned  case  it  was  clearly  decided  that  within  the  limit  set  by  the 
law  the  city  might  ordain  its  own  debt  limit,  but  might  also  by  implication  from  a 
charter  amendment  duly  adopted  advance  this  limit,  keeping  always,  of  course, 
within  the  statutory  limit.  5  102  Minn.  329.     1907. 


HOME  RULE  IN  MINNESOTA  487 

it  necessary  to  rely  upon  the  doctrine  of  Grant  v.  Berrisford  and 
reaffirmative  cases.  The  constitution  made  it  a  mandatory  duty 
of  the  legislature  to  pass  an  act  prescribing  limits  for  freeholders' 
charters.  One  of  the  few  limits  imposed  was  this  debt  limit. 
The  enabling  act  was  a  general  law  passed  subsequent  to  the  law 
relied  upon  to  defeat  the  competence  of  the  city.  So  far  as  it 
applied  to  home  rule  cities  the  later  law  clearly  repealed  the  former, 
for  the  two  could  not  possibly  stand  together.  And  this,  it  would 
seem,  was  all  the  argument  that  should  have  been  necessary  to 
turn  so  ridiculous  a  case  out  of  court. 

4.  Claims.  The  Minnesota  books  hold  a  number  of  cases  deal- 
ing with  conflicts  between  state  laws  and  charter  provisions  regu- 
lating the  rights  of  persons  asserting  claims  against  the  city  for 
damages  resulting  from  personal  injuries  due  to  negligence  in  the 
care  of  the  highways.  Attention  must  first  be  called  to  several 
of  these  cases  which  are  not  easily  reconciled. 

In  Nicol  v.  City  of  St.  Paul l  it  was  held  that  a  general  law  of 
1897  applying  to  all  cities  and  regulating  the  filing  of  notice  of 
such  claims  with  the  city  council  within  a  limited  time  2  operated 
to  repeal  the  provision  on  this  subject  that  was  embodied  in  the 
then  existing  legislative  charter  of  St.  Paul.  The  decision  of  this 
case  had,  of  course,  nothing  to  do  with  the  home  rule  amendment 
of  the  constitution.  Four  years  later  the  case  of  Olcott  v.  City  of 
St.  Paul,3  involving  a  question  of  this  kind,  was  decided  without 
reference  to  the  law  of  1897  on  the  ground  that  the  notice  required 
by  the  " citizens'  charter"  had  not  been  given.  This  clearly 
though  silently  implied  that  the  provisions  of  the  charter  upon 
this  subject  had  superseded  the  previously  enacted  general  law. 
In  1900  Duluth  became  organized  under  a  freeholders'  charter. 
This  charter  contained  a  provision  in  respect  to  this  matter  which 
differed  in  some  details  from  that  of  the  general  law.4  But  in 
Winters  v.  City  of  Duluth,5  decided  in  1901,  and  again  in  Megins 
i>.  City  of  Duluth,6  decided  in  1906,  the  act  of  1897  was  without 

1  80  Minn.  415.     1900.  ' 2  Laws  of  Minn.,  1897,  ch.  248. 

3  91  Minn.  207.     1904.  *  Charter  of  Duluth,  1900,  sec.  426. 

'  82  Minn.  127.     1901.  •  97  Minn.  23.     1906. 


488     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

reference  to  the  charter  provision  construed  and  applied  as  being 
controlling  upon  that  city.  Moreover,  in  the  published  code  of 
the  city  this  act  was  included  among  the  "miscellaneous  laws" 
applicable  to  the  city.1  There  is  obviously  no  consistency  in 
these  cases;  but  it  does  not  appear  whether  the  inconsistency 
may  be  ascribed  to  judicial  intention  or  to  judicial  carelessness 
resulting  from  the  insufficiency  of  the  briefs  of  counsel. 

However  that  may  be,  the  court  was  definitely  called  upon 
to  declare  the  law  upon  this  subject  in  the  case  of  Peterson  v. 
City  of  Red  Wing.2  It  was  there  held,  reliance  being  placed  upon 
Grant  v.  Berrisford  and  nothing  being  added  to  the  doctrine  of 
that  case,  that  a  notice  which  complied  with  the  provisions  of  a 
city  charter  although  not  with  the  statute  of  1897  was  all  that  was 
necessary.  Such  a  matter  was  "germane  to  the  subject  of  mu- 
nicipal legislation." 

In  Schigley  v.  City  of  Waseca 3  there  was  drawn  into  question 
the  validity  of  a  provision  of  the  freeholders'  charter  which  com- 
pletely exempted  the  city  "from  liability  to  any  person  for  damages 
for  injuries  suffered  or  sustained  by  reason  of  defective  streets  or 
sidewalks  within  said  city  unless  actual  notice  in  writing  of  such 
defects  .  .  .  had  been  filed  with  the  city  clerk  within  at  least  ten 
days  before  the  occurrence  of  such  injury  or  damage."  Review- 
ing cases  from  numerous  jurisdictions  concerning  the  source  of 
the  liability  of  cities  for  the  care  of  the  streets,  the  court  concluded 
that  it  was  clear  "that  the  legislature  may  grant  or  deny  to  indi- 
viduals a  right  of  action"  against  cities  for  negligence  in  this 
'matter,  and  that  in  consequence  a  law  which  embraced  the  charter 
provision  under  review  "would  be  constitutional."  Reviewing  the 
cases  on  the  subject  of  home  rule  from  its  own  jurisdiction  —  cases 
which  have  been  noted  above  —  the  court  declared  as  follows  : 

There  can,  therefore,  be  no  serious  question  as  to  the  right  to  insert 
in  a  municipal  home  rule  charter  a  provision  prescribing  the  conditions 
under  which  an  individual  may  maintain  an  action  against  the  city  for 
personal  injuries  caused  by  the  failure  of  the  authorities  to  keep  the 
streets  and  highways  in  proper  condition.  Under  the  common  law  of 

1  Code  of  1912,  p.  20.  2  101  Minn.  62.     1907.  8  106  Minn.  94.     1908. 


HOME  RULE  IN  MINNESOTA  489 

the  state,  a  person  so  injured  cannot  recover  damages  unless  he  can  prove 
that  the  municipality  had  notice  of  the  defect.  He  may,  however,  estab- 
lish this  essential  element  of  his  right  of  action  by  facts  which  charge  the 
municipality  with  constructive  notice.  This  charter  changes  the  general 
rule  to  the  extent  of  requiring  actual  notice  in  writing.  The  written  notice 
need  not,  of  course,  have  been  given  by  the  injured  party.  It  does  not 
relieve  the  city  from  liability  in  all  cases,  although  it  manifestly  places  a 
very  serious  obstacle  in  the  way  of  the  injured  party.  The  policy  of  such 
a  limitation  may  be  open  to  serious  question ;  but  that  is  a  matter  to  be 
determined  by  the  legislature  and  the  voters  of  the  particular  city.  The 
legislature  has  not  deemed  it  advisable  to  restrict  the  city  in  this  respect, 
and,  as  the  subject  is  clearly  one  proper  for  municipal  legislation,  the 
charter  provision  had  the  force  and  effect  of  a  direct  act  of  the  legislature, 
and  is  therefore  effective. 

The  court  here  placed  an  existing  rule  of  the  common  law  in 
precisely  the  same  category  as  a  previously  enacted  statute. 
This,  it  would  seem,  was  eminently  proper  in  view  of  the  fact 
that  a  statute  may  repeal  or  modify  any  principle  of  the  common 
law.  It  would  have  been  somewhat  curious,  to  say  the  least, 
had  the  rule  been  laid  down  that  a  freeholders'  charter  could 
supersede  any  previously  enacted  general  law,  which  itself  might 
have  abolished  or  changed  a  common  law  principle,  but  that  it 
could  not  affect  a  common  law  principle  which  had  been  unaltered 
by  statute. 

It  is  to  be  noted,  moreover,  that  under  the  views  expressed  in 
this  opinion  there  could  be  no  doubt  that  a  home  rule  city  of 
Minnesota,  barring  the  proscription  of  a  governing  state  law  appli- 
cable to  cities  under  freeholders'  charters,  could  absolutely  free 
itself  from  any  liability  for  negligence  in  the  care  of  its  streets. 
It  is  interesting  to  record,  however,  that  in  Senecal  v.  City  of 
West  St.  Paul l  it  was  held,  by  a  highly  strained  construction  of  a 
freeholders'  charter,  that  a  provision  thereof  which  required  an 
action  in  damages  for  personal  injury  to  be  brought  within  one 
year  did  not  apply  to  an  action  brought  under  a  general  statute 
giving  the  next  of  kin  of  a  deceased  person  an  action  if  his  death 
was  caused  by  the  wrongful  act  of  another.  It  was  not  declared 

i  111  Minn.  253.     1910. 


490  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

in  this  case  that  the  statute  superseded  the  charter  but  that  the 
charter  did  not  purport  to  cover  such  a  case. 

5.  Police  courts.  In  State  ex  rel.  Simpson  v.  Fleming l  the 
legality  of  a  municipal  judgeship  established  by  the  freeholders' 
charter  of  the  city  of  Virginia  was  the  issue  before  the  court. 
Such  an  office  was  provided  for  by  a  general  statute  of  1899  2 
with  which  the  provision  of  the  charter  of  1909  was  clearly  in 
conflict.  Referring  to  the  several  state  laws  relating  to  munici- 
pal courts,  the  opinion  recited  in  part  as  follows : 

The  court  thus  established  was  a  state  court,  and  the  judges  state 
officers.  The  constitution  required  that  all  courts  not  specified  should 
be  established  by  the  legislature  by  a  two- thirds  vote.  (Art.  VI,  sec.  1.) 
A  vote  of  the  electors  of  a  city  on  the  adoption  of  a  charter  is  not  the 
establishment  of  a  court,  as  required  by  the  constitution.  A  vote  of  the 
legislature  with  reference  to  other  municipal  affairs  may  be  by  a  mere 
majority.  Attention  is  called  to  this  distinction  in  State  v.  Porter,  53 
Minn.  279,  55  N.  W.  134.  The  subject,  and  the  character  of  the  duties 
of  municipal  judges  and  other  municipal  officers,  is  [sic]  well  defined.  In 
the  one  case  they  are  in  the  interests  of  the  state ;  in  the  other,  confined  to 
the  interests  of  the  municipality.  The  powers  and  duties  of  the  courts 
provided  for  are  purely  and  exclusively  judicial.  They  have  neither  ad- 
ministrative nor  legislative  powers  in  the  affairs  of  the  municipality. 
State  v.  Sullivan,  67  Minn.  379,  69  N.  W.  1094 ;  State  v.  Dreger,  97  Minn. 
221,  106  N.  W.  904. 

The  respondent  having  been  elected  a  state  officer  under  the  general 
law,  it  was  not  within  the  power  of  the  voters  of  that  municipality  to 
legislate  him  out  of  office,  or  shorten  his  term  of  office. 

The  issue  in  this  case  was  in  fact  one  of  conflict.  The  suprem- 
acy of  the  state  law  could  easily  have  been  sustained  by  the  appli- 
cation of  the  doctrine  of  Grant  v.  Berrisford  and  the  reaffirmative 
cases  noted  above;  for  in  the  view  here  taken  by  the  court  a 
municipal  judge  was  a  state  rather  than  a  local  officer  and  a  mu- 
nicipal court  was  a  matter  of  state  rather  than  of  local  concern. 
In  all  the  other  cases  to  which  reference  has  been  made  charter 
provisions  were  declared  to  supersede  previously  enacted  general 
statutes  only  upon  the  ground  that  the  matters  in  respect  to  which 
conflict  existed  were  municipal  as  distinguished  from  state  affairs. 

1  112  Minn.  136.  1910.       2  Laws  of  Minn.,  1895,  ch.  229;  1899,  ch.  271. 


HOME  RULE  IN  MINNESOTA  491 

It  may  be  that  when  finally  presented  with  the  actual  necessity  of 
applying  the  doctrine  that  a  previously  enacted  state  law  on  a 
subject  of  general  concern  was  not  controlled  by  a  charter  pro- 
vision, the  court  discovered  a  serious  obstacle  in  the  declaration 
of  the  constitution  to  the  effect  that  a  freeholders'  charter  should 
"supersede  any  existing  charter."  It  would  seem  that  the  only 
possible  answer  would  be  that  a  general  law  upon  such  a  subject 
was  not  a  part  of  the  existing  charter.  If  the  Minnesota  court 
had  taken  a  narrow  view  of  the  scope  of  municipal  affairs  —  if, 
for  example,  it  had  been  held  that  a  general  law  relating  to  police 
departments  would  control  a  subsequently  enacted  charter  pro- 
vision l  —  it  is  apparent  that  such  an  answer  would  have  been 
little  short  of  ridiculous.  But  the  fact  is  that  in  passing  upon  ques- 
tions of  this  kind  the  Minnesota  court  has,  as  we  have  seen, 
taken  a  very  broad  view  of  the  scope  of  powers  that  may  be  appro- 
priately controlled  by  a  municipal  charter.  The  case  under 
review  is  the  only  case  in  the  books  in  which  that  court  failed  to 
sustain  the  supremacy  of  a  charter  provision  over  a  previously 
enacted  general  law.  In  this  particular  case  it  would  have  been 
quite  reasonable  had  the  court  asserted  that  a  general  law  estab- 
lishing police  courts  was  not  a  part  of  the  " existing  charter"  of 
those  cities  to  which  it  applied,  this  assertion  being  predicated  upon 
the  fact  that  such  a  law  could  not  be  enacted  in  the  manner  of  a 
general  charter  law  since  the  constitution  required  for  its  passage 
a  two-thirds  majority  vote. 

But  this  is  merely  to  speculate  upon  the  difficulties  which  the 
court  would  have  encountered  had  the  decision  here  under  review 
been  reached  by  applying  the  doctrine  of  the  Grant  case  to  the 
solution  of  the  manifest  conflict  that  existed  between  the  charter 
provision  and  the  previously  enacted  law.  The  fact  is  that  the 
court  elected  to  rest  the  decision  of  this  case  upon  the  broader 
ground.  It  was  in  effect  held  that,  regardless  of  any  controlling 
state  law,  it  was  beyond  the  competence  of  the  city  to  erect  a 
municipal  court  for  the  reason  that  the  constitution  required 

1  In  fact  the  contrary  was  indicated  (supra,  467)  though  the  point  has  never  been 
directly  raised. 


492     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

inferior  courts  to  be  established  by  the  legislature  by  a  two-thirds 
vote.  Whether  in  the  absence  of  this  requirement  of  an  extraordi- 
nary majority  vote  the  court  might  have  proclaimed  that  the 
establishment  of  such  a  court  by  a  freeholders'  charter  was  equiva- 
lent to  establishment  by  the  legislature,  it  is  impossible  to  say. 
Certainly,  however,  this  requirement  of  an  unusual  majority  was 
of  importance.  A  home  rule  charter  was  in  effect  a  " statute." 
Could  it  be  held  that  a  city  in  enacting  such  a  statute  was  vested 
with  greater  powers  than  the  legislature  itself  —  that  it  could, 
wholly  absolved  from  extraordinary  limitations,  deal  therein  with 
a  subject  hi  respect  to  which  the  legislature  was  circumscribed 
by  such  limitations?  In  this  regard,  as  well  as  in  the  fact  that 
the  legislature  of  Minnesota  does  not  in  any  wise  participate  hi 
the  making  of  freeholders'  charters,  the  view  of  the  court  in  this 
case  may  be  distinguished  from  that  of  the  Missouri,  California, 
and  Washington  courts  in  cases  upon  the  same  subject.1 

6.  Police  power.  No  case  has  arisen  in  Minnesota  involving 
a  direct  conflict  between  state  laws  and  charter  provisions 
enacted  hi  pursuance  of  the  police  power.  In  State  v.  Collins2 
it  was  held  that  an  ordinance  of  Minneapolis — a  city  under  a  legis- 
lative charter  —  which  prohibited  the  sale  of  liquors  on  Sunday 
was  not  void  as  being  in  conflict  with  a  state  law.  Apparently 
the  rule  that  was  applied,  without  much  comment,  was  that  which 
asserts  the  concurrent  competence  of  a  city  in  the  exercise  of  police 
powers  so  long  as  no  actual  conflict  of  policy  is  found  to  exist.3  In 
the  course  of  the  opinion  rendered  in  this  case  it  was  declared  that 
"the  provisions  of  section  36,  article  4,  of  the  constitution  to  the 
effect  that  no  charter  or  ordinance  enacted  thereunder  shall 
supersede  any  general  law  defining  or  punishing  crimes  or  mis- 
demeanors applied  only  to  cities  having  home  rule  charters,  of 
which  class  Minneapolis  is  not  a  member."  Whether  by  this 
declaration  the  court  intended  to  imply  that  this  provision  of  the 
home  rule  amendment  had  hi  any  wise  altered  the  well-known 
rule  of  law  governing  the  relation  between  police  laws  and  police 

i  Supra,  195,  206,  241,  373,  400.  2 107  Minn.  500.     1909. 

»  Reliance  was  placed  on  State  ».  Marciniak,  97  Minn.  355.     1906. 


HOME  RULE  IN  MINNESOTA  493 

ordinances,  it  is  impossible  to  say.  This  case  appears  to  be  the 
only  case  in  which  this  provision  has  ever  been  referred  to. 

In  Kleppe  v.  Gard  l  and  again  in  Thune  v.  Hetland  2  it  was  held 
that  a  state  law  which  conferred  local  option  in  liquor  matters 
upon  "any  town  or  incorporated  village"  did  not  apply  to  cities. 
In  the  latter  case  it  was  intimated  that  the  provisions  of  .a  free- 
holders' charter  upon  this  subject  were  not  beyond  the  scope  of 
the  city's  powers  in  adopting  a  charter ;  but  it  was  also  intimated 
that  such  provisions  must  not  be  "subversive  of  the  declared 
policy  of  the  state  as  to  the  sale  of  intoxicating  liquor."  Evi- 
dently the  fact  that  the  city  enjoyed  power  to  regulate  such  a 
matter  was  due  to  the  failure  of  the  state  to  establish  a  controlling 
policy  for  cities. 

No  conclusions  of  much  importance  can  be  deduced  from  this 
limited  number  of  cases  which  after  all  touch  only  indirectly  upon 
issues  of  conflict  over  the  police  power. 

The  Supremacy  over  Charter  Provisions  of  Laws  Applicable  to 
Classes  of  Cities 

From  a  reading  of  the  foregoing  cases  one  may  certainly  con- 
clude that  the  Minnesota  court  has,  to  the  extent  that  adjudica- 
tions have  been  necessary,  been  extremely  liberal  toward  the  city 
in  construing  the  constitutional  grant  of  home  rule  powers.  One 
might  also  be  prompted  to  conclude  that  home  rule  in  that  state 
has  been  a  thing  of  great  reality  and  vitality.  The  facts  are 
quite  otherwise,  though  the  books  do  not  disclose  these  facts. 

It  will  be  recalled  that  no  single  case  has  been  reviewed  in 
which  the  court  was  asked  to  determine  a  question  of  conflict 
between  a  charter  provision  and  a  general  law  enacted  subsequent 
to  the  adoption  of  the  charter.  Apparently  no  such  case  has  ever 
arisen.  Why?  The  answer  is  written  in  the  plain  words  of  the 
constitution.  "The  legislature  may  provide  general  laws  relating 
to  the  affairs  of  cities,  the  application  of  which  shall  be  limited 
to  cities"  of  several  designated  classes,  which  laws  "shall  be  para- 

1 109  Minn.  251.     1909.  «  114  Minn.  395.     1911. 


494     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

mount  while  in  force  to  the  provisions  relating  to  the  same  matter 
included  in  the  local  charter  herein  provided  for."  The  mean- 
ing of  this  declaration  of  the  constitution  is  scarcely  open  to  ques- 
tion. It  is  small  wonder,  therefore,  that  no  cases  have  arisen 
involving  the  question  of  the  relation  of  superiority  and  inferi- 
ority between  freeholders'  charter  provisions  and  laws  of  general 
applicableness  relating  to  the  affairs  of  the  city.  The  presentation 
of  such  a  question  to  the  courts  would-be  manifestly  absurd. 

Here,  then,  is  the  strange  situation  created  by  the  home  rule 
provisions  of  the  Minnesota  constitution.  Although  a  freeholders' 
charter  is  made  to  supersede  any  existing  charter,  the  legislature 
may  at  will  enact  laws  applicable  to  the  cities  of  any  class,  which 
laws  are  in  turn  made  to  supersede  the  provisions  of  the  freeholders' 
charter.  In  other  words,  when  a  city  has  by  the  adoption  of  a 
home  rule  charter  blotted  its  old  legislative  charter  out  of  exist- 
ence, there  is  nothing  whatever  to  prevent  the  legislature  from 
immediately  reenacting  the  whole  or  any  part  of  the  former  charter 
so  long  as  the  law  or  laws  by  which  this  is  accomplished  are  made 
applicable  to  the  cities  of  an  entire  class.  The  statute  books  of 
Minnesota  teem  with  laws  relating  to  the  affairs  of  classes  of  cities 
which  have  been  enacted  since  the  adoption  of  the  home  rule 
amendment  and  of  charters  made  pursuant  thereto.  In  most 
instances  these  laws  apply  alike  to  cities  under  freeholders'  charters 
and  cities  under  legislative  charters.  Every  law,  for  example,  that 
is  made  applicable  to  cities  of  more  than  50,000  inhabitants  oper- 
ates to  amend  not  only  the  legislative  charter  of  Minneapolis  but 
also  the  home  rule  charters  of  St.  Paul  and  Duluth.  There  is 
eminent  authority  for  the  assertion  that  the  charter  of  St.  Paul, 
adopted  in  1900,  was  amended  three  hundred  and  thirteen  times 
during  the  succeeding  eleven  years.1  Such  a  scheme  of  home  rule 
is  obviously  a  mere  shadow,  a  travesty  indeed  upon  the  term 
itself.  It  is  precisely  what  the  supreme  court  of  that  state  de- 
clared that  it  was  not  —  to  wit,  "a  mere  form  of  words." 

One  question  arising  out  of  this  curious  grant  of  home  rule  has 
not  been  settled  by  any  case  of  supreme  court  record.  It  does  not 

1  Professor  William  A.  Schaper  in  National  Municipal  Review,  1 :  110. 


HOME  RULE  IN  MINNESOTA  495 

appear,  for  example,  whether  Minneapolis  in  drafting  a  home  rule 
charter  at  this  late  date  would  or  would  not  be  bound  by  all  of 
the  provisions  of  laws  relating  to  cities  -of  the  first  class  which 
have  been  enacted  since  the  adoption  of  the  home  rule  amend- 
ment. These  laws  certainly  form  a  part  of  the  city's  existing 
legislative  charter.  It  would  seem,  therefore,  that  they  would 
be  superseded  by  the  adoption  of  a  charter  of  the  city's  own  mak- 
ing. The  curious  result  would  then  follow  that  St.  Paul,  under 
its  charter  of  1900,  would  be  subject  to  the  control  of  these  laws 
although  Minneapolis,  a  city  of  the  same  class,  would  by  its  own 
action  have  emerged  from  the  control  of  such  laws.  It  would 
seem  also  that  St.  Paul,  by  the  adoption  of  a  new  charter  or  of 
charter  amendments,  might  at  any  time  release  itself  from  the 
necessity  of  being  governed  by  any  provisions  of  the  laws  applicable 
to  its  class  of  cities  to  which  it  might  object.  If  this  be  the  law 
of  the  Minnesota  constitution  it  is  clear  that  that  instrument  has 
merely  established  a  game  of  shuttlecock  between  the  city  and 
the  legislature. 

We  are  not  here  especially  concerned  with  the  rules  that  have 
been  laid  down  by  the  supreme  court  of  Minnesota  in  respect  to 
the  competence  of  the  legislature  to  alter  in  effect  the  classifica- 
tion of  cities  as  fixed  by  the  constitution  upon  the  basis  of  popu- 
lation. It  is  somewhat  interesting  to  note,  however,  that  the 
court  has  been  more  liberal  than  otherwise  in  passing  upon  ques- 
tions concerning  this  competence,  and  that  it  is  practically  im- 
possible to  reconcile  certain  of  the  opinions  that  have  been  handed 
down.  Thus  in  a  single  volume  of  the  reports  are  found  three 
cases  which  cannot  possibly  be  harmonized.  In  Le  Tourneau  v. 
Hugo  1  an  act  which  authorized  any  city  of  more  than  50,000  in- 
habitants to  construct  a  bridge  over  any  navigable  canal  in  such 
city  was  sustained,  although  Duluth,  then  operating  under  a 
freeholders'  charter,  was  the  only  city  in  which  such  a  canal 
existed.  "The  canal,"  said  the  court,  "is  in  no  sense  an  element 
of  the  classification  or  operation  of  the  act,  being  limited  exclu- 

1  90  Minn.  420  (1903) ;  see  also  State  ex  rel.  Corriston  v.  Rogers,  93  Minn.  55 
(1904). 


496     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

sively  to  cities  of  designated  population."  Here  was  sanction 
not  only  for  the  application  of  a  general  law  to  a  home  rule  city 
but  also  for  the  application  of  a  law  which  was  by  reason  of  its 
subject-matter  special  in  character.  On  the  other  hand,  in  State 
ex  rel.  Chapel  v.  Justus  l  an  act  applying  to  any  city  of  more  than 
10,000  inhabitants  "which  has  a  system  of  sewer  or  waterworks" 
was  held  invalid  on  the  ground  that  this  was  not  a  permissible 
classification  under  the  constitution.  So  also,  upon  the  same 
ground,  in  Thomas  v.  City  of  St.  Cloud  2  an  act  was  declared  void 
which  empowered  any  city  of  less  than  10,000  inhabitants  to  re- 
purchase a  waterworks  which  had  formerly  been  owned  by  the 
city  and  had  been  sold.  In  the  two  cases  last  mentioned  the 
court  wisely  avoided  any  reference  to  the  case  first  mentioned. 

In  the  case  of  Hunter  v.  City  of  Tracy 3  an  act  was  sustained 
which  applied  to  cities  of  less  than  10,000  inhabitants  and  expressly 
excluded  from  its  operation  the  cities  of  this  class  which  were 
operating  under  home  rule  charters  that  contained  contrary  pro- 
visions upon  the  subject-matter  of  the  law.  The  court  declared 
as  follows : 

The  placing  of  home  rule  charter  cities  having  ten  thousand  or  less 
inhabitants  in  a  class  by  themselves  is  in  accordance  with  the  constitu- 
tion (article  4,  sec.  36),  which  provides,  not  only  for  the  classification  of 
the  cities  by  population,  but  also  for  a  class  of  cities  which  have  or  may 
have  home  rule  charters.  This  classification  is  not  arbitrary,  for  it  rests 
upon  the  obvious  reason  that,  if  such  cities  must  be  made  subject  to  all 
general  legislation  affecting  cities,  then  home  rule  charters  would  be  of 
but  slight,  if  any,  advantage.  Again,  it  would  lead  to  great  confusion 
and  conflict  between  the  provisions  of  home  rule  charters  and  general  laws, 
if  cities  having  such  charters  could  not  be  placed  in  a  class  by  themselves 
and  excepted  from  general  laws  relating  to  cities.  We  hold  that  the 
statute  is  not  unconstitutional  because  home  rule  charter  cities  are  ex- 
cepted from  its  operation. 

This  case  was  decided  hi  the  year  1908.  It  gave  unmistakable 
sanction  to  the  authority  of  the  legislature  to  subdivide  each 
of  the  classes  of  cities  created  by  the  constitution  into  two 

1  90  Minn.  474.     1903.  z  90  Minn.  477.     1903. 

«  104  Minn.  378.     1908. 


HOME  RULE  IN  MINNESOTA  497 


classes  —  cities  under  home  rule  charters  and  cities  under  legis- 
lative charters.  Under  the  rule  thus  laid  down  the  legislature 
of  Minnesota  has  been  able  to  amend  home  rule  charters  without 
being  under  the  necessity  of  considering  the  effect  of  its  laws  upon 
cities  under  legislative  charters.  This  was  patently  an  important 
decision  in  the  direction  of  increasing  the  power  of  the  legislature 
over  cities  under  freeholders'  charters  and  in  correspondingly 
diminishing  the  significance  of  the  hybrid  grant  of  home  rule 
extended  to  cities  by  the  provisions  of  the  constitution. 

When  it  is  considered  that  the  legislature  of  Minnesota  is  ex- 
pressly empowered  to  fix  the  limits  within  which  a  freeholders' 
charter  may  be  framed  (which  power  has  been  exercised  in  great 
moderation)  and  that  it  is  further  empowered  to  enact  laws 
applicable  to  home  rule  cities  of  certain  specified  classes  (which 
power  it  has  exercised  with  great  frequency)  it  is  manifest  that 
such  limited  power  of  home  rule  as  exists  in  this  state  is  referable 
more  largely  to  the  dispensation  of  the  legislature  than  to  any 
protective  guarantee  of  the  constitution. 


CHAPTER  XIV 
HOME  RULE  IN  COLORADO 

THE  history  of  the  movement  which  led  to  the  adoption  in 
1902  of  an  amendment  to  the  Colorado  constitution  extending 
home  rule  to  Denver  in  particular  and  somewhat  more  incidentally 
to  all  cities  of  more  than  two  thousand  inhabitants  has  been  so 
admirably  described  by  Dr.  King  in  his  History  of  ike  Govern- 
ment of  Denver  l  that  it  need  not  be  here  retold.  Suffice  it  to  say 
that  the  movement  originated  in  the  metropolitan  city  of  the 
state  and  grew  out  of  a  combination  of  exhaustion  and  exaspera- 
tion on  the  part  of  public-spirited  citizens  with  a  long-continued 
legislative  practice  of  interference  in  the  affairs  of  the  city  for 
political  and  sinister  purposes,  and  especially  with  state  domina- 
tion of  the  police  and  fire  department  and  practically  the  entire 
field  of  municipal  public  works  through  the  medium  of  two  all- 
powerful  commissions  appointed  by  the  governor.  The  amend- 
ment as  adopted  was  long  and  complicated,  but  it  seems  advisable 
to  present  it  here  in  extenso  for  purposes  of  reference  as  well  as 
in  order  that  the  cases  construing  its  provisions  may  be  more 
easily  understood.  It  ran  as  follows  : 2 

Sec.  1.  The  municipal  corporation  known  as  the  city  of  Denver, 
and  all  municipal  corporations  and  that  part  of  the  quasi-municipal  cor- 
poration known  as  the  county  of  Arapahoe,  in  the  state  of  Colorado, 
included  within  the  exterior  boundaries  of  the  said  city  of  Denver  as  the 
same  shall  be  bounded  when  this  amendment  takes  effect,  are  hereby 
consolidated  and  are  hereby  declared  to  be  a  single  body  politic  and  cor- 
porate, by  the  name  of  the  "City  and  County  of  Denver."  By  that  name 
said  corporation  shall  have  perpetual  succession,  and  shall  own,  possess 
and  hold  all  property,  real  and  personal,  theretofore  owned,  possessed 

i  Ch.  V.  *  Art.  XX. 

498 


HOME  RULE  IN   COLORADO  499 

or  held  by  the  said  city  of  Denver  and  by  such  included  municipal  corpora- 
tions, and  also  all  property,  real  and  personal,  theretofore  owned,  possessed 
or  held  by  the  said  county  of  Arapahoe,  and  shall  assume,  manage  and 
dispose  of  all  trusts  in  any  way  connected  therewith ;  shall  succeed  to  all 
the  rights  and  liabilities,  and  shall  acquire  all  benefits,  and  shall  assume 
and  pay  all  bonds,  obligations  and  indebtedness  of  said  city  of  Denver 
and  of  said  included  municipal  corporations  and  of  the  county  of  Arap- 
ahoe; by  that  name  may  sue  and  defend,  plead  and  be  impleaded,  in 
all  courts  and  places,  and  in  all  matters  and  proceedings ;  may  have  and 
use  a  common  seal  and  alter  the  same  at  pleasure ;  may  purchase,  receive, 
hold  and  enjoy,  or  sell  and  dispose  of,  real  and  personal  property;  may 
receive  bequests,  gifts  and  donations  of  all  kinds  of  property,  in  fee  simple, 
or  in  trust  for  public,  charitable  or  other  purposes;  and  do  all  things 
and  acts  necessary  to  carry  out  the  purposes  of  such  gifts,  bequests  and 
donations,  with  power  to  manage,  sell,  lease  or  otherwise  dispose  of  the 
same  in  accordance  with  the  terms  of  the  gift,  bequest  or  trust;  shall 
have  the  power,  within  or  without  its  territorial  limits,  to  construct,  con- 
demn and  purchase,  acquire,  lease,  add  to,  maintain,  conduct  and  operate, 
waterworks,  light  plants,  power  plants,  transportation  systems,  heating 
plants,  and  any  other  public  utilities  or  works  or  ways  local  in  use  and 
extent,  in  whole  or  in  part,  and  everything  required  therefor,  for  the  use 
of  said  city  and  county  and  the  inhabitants  thereof,  and  any  such  systems, 
plants  or  works  or  ways,  or  any  contracts  in  relation  or  connection  with 
either,  that  may  exist  and  which  said  city  and  county  may  desire  to  pur- 
chase, in  whole  or  in  part,  the  same  or  any  part  thereof  may  be  purchased 
by  said  city  and  county  which  may  enforce  such  purchase  by  proceedings 
at  law  as  in  taking  land  for  public  use  by  right  of  eminent  domain,  and 
shall  have  the  power  to  issue  bonds  upon  the  vote  of  the  taxpaying 
electors,  at  any  special  or  general  election,  in  any  amount  necessary 
to  carry  out  any  of  said  powers  or  purposes,  as  may  by  the  charter  be 
provided. 

The  general  annexation  and  consolidation  statutes  of  the  state  shall 
apply  to  the  city  and  county  of  Denver  to  the  same  extent  and  in  the 
same  manner  that  they  would  apply  to  the  city  of  Denver  if  it  were  not 
merged,  as  in  this  amendment  provided,  into  the  city  and  county  of  Den- 
ver. Any  contiguous  town,  city  or  territory,  hereafter  annexed  to  or 
consolidated  with  the  city  and  county  of  Denver,  under  any  of  the  laws 
of  this  state,  in  whatsoever  county  the  same  may  be  at  the  time,  shall 
be  detached  per  se  from  such  other  county  and  become  a  municipal  and 
territorial  part  of  the  city  and  county  of  Denver,  together  with  all  property 
thereunto  belonging. 

The  city  and  county  of  Denver  shall  alone  always  constitute  one 
judicial  district  of  the  state. 


500     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Sec.  2.  The  officers  of  the  city  and  county  of  Denver  shall  be  such  as 
by  appointment  or  election  may  be  provided  for  by  the  charter ;  and  the 
jurisdiction,  term  of  office,  duties  and  qualifications  of  all  such  officers 
shall  be  such  as  in  the  charter  may  be  provided ;  but  every  charter  shall 
designate  the  officers  who  shall,  respectively,  perform  the  acts  and  duties 
required  of  county  officers  to  be  done  by  the  constitution  or  by  the  general 
law,  as  far  as  applicable.  If  any  officer  of  said  city  and  county  of  Denver 
shall  receive  any  compensation  whatever,  he  or  she  shall  receive  the  same 
as  a  stated  salary,  the  amount  of  which  shall  be  fixed  by  the  charter,  and 
paid  out  of  the  treasury  of  the  city  and  county  of  Denver  in  equal  monthly 
payments. 

Sec.  3.  Immediately  upon  the  canvass  of  the  vote  showing  the  adop- 
tion of  this  amendment,  it  shall  be  the  duty  of  the  governor  of  the  state 
to  issue  his  proclamation  accordingly,  and  thereupon  the  city  of  Denver, 
and  all  municipal  corporations  and  that  part  of  the  county  of  Arapahoe 
within  the  boundaries  of  said  city,  shall  merge  into  the  city  and  county 
of  Denver,  and  the  terms  of  office  of  all  officers  of  the  city  of  Denver  and 
of  all  included  municipalities  and  of  the  county  of  Arapahoe  shall  termi- 
nate; except,  that  the  then  mayor,  auditor,  engineer,  council  (which 
shall  perform  the  duties  of  a  board  of  county  commissioners),  police  magis- 
trate, chief  of  police  and  boards,  of  the  city  of  Denver  shall  become, 
respectively,  said  officers  of  the  city  and  county  of  Denver,  and  said 
engineer  shall  be  ex  officio  surveyor  and  said  chief  of  police  shall  be  ex 
officio  sheriff  of  the  city  and  county  of  Denver;  and  the  then  clerk  and 
ex  officio  recorder,  treasurer,  assessor  and  coroner  of  the  county  of  Arap- 
ahoe, and  the  justices  of  the  peace  and  constables  holding  office  within 
the  city  of  Denver,  shall  become,  respectively,  said  officers  of  the  city 
and  county  of  Denver,  and  the  district  attorney  shall  also  be  ex  officio 
attorney  of  the  city  and  county  of  Denver.  The  foregoing  officers  shall 
hold  the  said  offices  as  above  specified  only  until  their  successors  are  duly 
elected  and  qualified  as  herein  provided  for ;  except  that  the  ther  district 
judge,  county  judge  and  district  attorney  shall  serve  their  full  terms, 
respectively,  for  which  elected.  The  police  and  firemen  of  the  city  of 
Denver,  except  the  chief  of  police  as  such,  shall  continue  severally  as  the 
police  and  firemen  of  the  city  and  county  of  Denver  until  they  are  severally 
discharged  under  such  civil  service  regulations  as  shall  be  provided  by 
the  charter ;  and  every  charter  shall  provide  that  the  department  of  fire 
and  police  and  the  department  of  public  utilities  and  works  shall  be  under 
such  civil  service  regulations  as  in  said  charter  shall  be  provided. 

Sec.  4.  The  charter  and  ordinances  of  the  city  of  Denver,  as  the 
same  shall  exist  when  this  amendment  takes  effect,  shall,  for  the  time 
being  only,  and  as  far  as  applicable,  be  the  charter  and  ordinances  of  the 
city  and  county  of  Denver;  but  the  people  of  the  city  and  county  of 


HOME  RULE  IN  COLORADO  501 

Denver  are  hereby  vested  with,  and  they  shall  always  have  the  exclusive 
power  in  the  making,  altering,  revising  or  amending  their  charter,  and, 
within  ten  days  after  the  proclamation  of  the  governor  announcing  the 
adoption  of  this  amendment,  the  council  of  the  city  and  county  of  Den- 
ver shall,  by  ordinance,  call  a  special  election,  to  be  conducted  as  provided 
by  law,  of  the  qualified  electors  in  said  city  and  county  of  Denver,  for 
the  election  of  twenty-one  taxpayers,  who  shall  have  been  qualified  elec- 
tors within  the  limits  thereof  for  at  least  five  years,  who  shall  constitute 
a  charter  convention,  to  frame  a  charter  for  said  city  and  county  in  har- 
mony with  this  amendment.  Immediately  upon  completion,  the  charter 
so  framed,  with  a  prefatory  synopsis,  shall  be  signed  by  the  officers  and 
members  of  the  convention  and  delivered  to  the  clerk  of  said  city  and 
county,  who  shall  publish  the  same  in  full,  with  his  official  certification, 
in  the  official  newspaper  of  said  city  and  county,  three  times,  and  a  week 
apart,  the  first  publication  being  with  the  call  for  a  special  election,  at 
which  the  qualified  electors  of  said  city  and  county  shall  by  vote  express 
their  approval  or  rejection  of  the  said  charter.  If  the  said  charter  shall 
be  approved  by  a  majority  of  those  voting  thereon,  then  two  copies  thereof 
(together  with  the  vote  for  and  against),  duly  certified  by  the  said  clerk, 
shall,  within  ten  days  after  such  vote  is  taken,  be  filed  with  the  secretary 
of  state,  and  shall  thereupon  become  and  be  the  charter  of  the  city  and 
county  of  Denver.  But  if  the  said  charter  be  rejected,  then,  within 
thirty  days  thereafter,  twenty-one  members  of  a  new  charter  convention 
shall  be  elected  at  a  special  election,  to  be  called  as  above  in  said  city 
and  county,  and  they  shall  proceed  as  above  to  frame  a  charter,  which 
shall  in  like  manner  and  to  the  like  end  be  published  and  submitted  to  a 
vote  of  said  voters  for  their  approval  or  rejection.  If  again  rejected,  the 
procedure  herein  designated  shall  be  repeated  (each  special  election  for 
members  of  a  new  charter  convention  being  within  thirty  days  after  each 
rejection),  until  a  charter  is  finally  approved  by  a  majority  of  those  vot- 
ing thereon,  and  certified  (together  with  the  vote  for  and  against)  to  the 
secretary  of  state  as  aforesaid,  whereupon  it  shall  become  the  charter  of 
the  said  city  and  county  of  Denver  and  shall  become  the  organic  law 
thereof,  and  supersede  any  existing  charter  and  amendments  thereof. 
The  members  of  each  of  said  charter  conventions  shall  be  elected  at  large ; 
and  they  shall  complete  their  labors  within  sixty  days  after  their  respec- 
tive election. 

Every  ordinance  for  a  special  election  of  charter  convention  members 
shall  fix  the  time  and  place  where  the  convention  shall  be  held,  and  shall 
specify  the  compensation,  if  any,  to  be  paid  the  officers  and  members 
thereof,  allowing  no  compensation  in  case  of  non-attendance  or  tardy- 
attendance,  and  shall  fix  the  time  when  the  vote  shall  be  taken  on  the 
proposed  charter,  to  be  not  less  than  thirty  days  nor  more  than  sixty 


502     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

days  after  its  delivery  to  the  clerk.  The  charter  shall  make  proper  pro- 
vision for  continuing,  amending,  or  repealing  the  ordinances  of  the  city 
and  county  of  Denver. 

All  expenses  of  charter  conventions  shall  be  paid  out  of  the  treasury 
upon  the  order  of  the  president  and  secretary  thereof.  The  expenses  of 
elections  for  charter  conventions  and  of  charter  votes  shall  be  paid  out 
of  the  treasury,  upon  the  order  of  the  council. 

No  franchise,  relating  to  any  street,  alley  or  public  place  of  the  said 
city  and  county  shall  be  granted  except  upon  the  vote  of  the  qualified 
taxpaying  electors,  and  the  question  of  its  being  granted  shall  be  sub- 
mitted to  such  vote  upon  deposit  with  the  treasurer  of  the  expense  (to  be 
determined  by  said  treasurer)  of  such  submission  by  the  applicant  for 
said  franchise.  The  council  shall  have  power  to  fix  the  rate  of  taxation 
on  property  each  year  for  city  and  county  purposes. 

Sec.  5.  The  citizens  of  the  city  and  county  of  Denver  shall  have  the 
exclusive  power  to  amend  their  charter  or  to  adopt  a  new  charter,  or  to 
adopt  any  measure  as  herein  provided : 

It  shall  be  competent  for  qualified  electors,  in  number  not  less  than 
five  per  cent,  of  the  next  preceding  gubernatorial  vote  in  said  city  and 
county,  to  petition  the  council  for  any  measure,  or  charter  amendment, 
or  for  a  charter  convention.  The  council  shall  submit  the  same  to  a 
vote  of  the  qualified  electors  at  the  next  general  election,  not  held  within 
thirty  days  after  such  petition  is  filed ;  whenever  such  petition  is  signed 
by  qualified  electors  in  number  not  less  than  ten  per  cent,  of  the  next 
preceding  gubernatorial  vote  in  said  city  and  county,  with  a  request  for 
a  special  election,  the  council  shall  submit  it  at  a  special  election,  to  be 
held  not  less  than  thirty  nor  more  than  sixty  days  from  the  date  of  filing 
the  petition;  Provided,  That  any  question  so  submitted  at  a  special 
election  shall  not  again  be  submitted  at  a  special  election  within  two 
years  thereafter.  In  submitting  any  such  charter,  charter  amendment 
or  measure,  any  alternative  article  or  proposition  may  be  presented  for 
the  choice  of  the  voters,  and  may  be  voted  on  separately  without  preju- 
dice to  others.  Whenever  the  question  of  a  charter  convention  is  carried 
by  a  majority  of  those  voting  thereon,  a  charter  convention  shall  be 
called  through  a  special  election  ordinance,  as  provided  in  section  four  (4) 
hereof,  and  the  same  shall  be  constituted  and  held  and  the  proposed 
charter  submitted  to  a  vote  of  the  qualified  electors,  approved  or  rejected 
and  all  expenses  paid,  as  in  said  section  provided. 

The  clerk  of  the  city  and  county  shall  publish,  with  his  official  certifi- 
cation, for  three  times,  a  week  apart,  in  the  official  newspaper,  the  first 
publication  to  be  with  his  call  for  the  election,  general  or  special,  the  full 
text  of  any  charter,  charter  amendment,  measure  or  proposal  for  a  charter 
convention,  or  alternative  article  or  proposition  which  is  to  be  submitted 


HOME  RULE  IN  COLORADO  503 

to  the  voters.  Within  ten  days  following  the  vote  the  said  clerk  shall 
publish  once  in  said  newspaper  the  full  text  of  any  charter,  charter  amend- 
ment, measure,  or  proposal  for  a  charter  convention,  or  alternative  article 
or  proposition,  which  shall  have  been  approved  by  a  majority  of  those 
voting  thereon,  and  he  shall  file  with  the  secretary  of  state  two  copies 
thereof  (with  the  vote  for  and  against)  officially  certified  by  him,  and  the 
same  shall  go  into  effect  from  the  date  of  such  filing.  He  shall  also  cer- 
tify to  the  secretary  of  state,  with  the  vote  for  and  against,  two  copies  of 
every  defeated  alternative  article  or  proposition,  charter,  charter  amend- 
ment, measure  or  proposal  for  a  charter  convention.  Each  charter  shall 
also  provide  for  a  reference,  upon  proper  petition  therefor,  of  measures 
passed  by  the  council  to  a  vote  of  the  qualified  electors,  and  for  the  initiative 
by  the  qualified  electors  of  such  ordinances  as  they  may  by  petition  request. 

The  signatures  to  petitions  in  this  amendment  mentioned  need  not  all 
be  on  one  paper.  Nothing  herein  or  elsewhere  shall  prevent  the  council, 
if  its  sees  fit,  from  adopting  automatic  vote  registers  for  use  at  elections 
and  references. 

No  charter,  charter  amendment  or  measure  adopted  or  defeated  under 
the  provisions  of  this  amendment  shall  be  amended,  repealed,  or  revived, 
except  by  petition  and  electoral  vote.  And  no  such  charter,  charter 
amendment  or  measure  shall  diminish  the  tax  rate  for  state  purposes 
fixed  by  act  of  the  general  assembly,  or  interfere  in  any  wise  with  the 
collection  of  state  taxes. 

Sec.  6.  Cities  of  the  first  and  second  class  in  this  state  are  hereby 
empowered  to  propose  for  submission  to  a  vote  of  the  qualified  electors, 
proposals  for  charter  conventions  and  to  hold  the  same,  and  to  amend 
any  such  charter,  with  the  same  force  and  in  the  same  manner  and  have 
the  same  power,  as  near  as  may  be,  as  set  out  in  sections  four  (4)  and 
five  (5)  hereof,  with  full  power  as  to  real  and  personal  property  and  public 
utilities,  works  or  ways,  as  set  out  in  section  one  (1)  of  this  amendment. 

Sec.  7.  The  city  and  county  of  Denver  shall  alone  always  constitute 
one  school  district,  to  be  known  as  District  No.  1,  but  its  conduct  of 
affairs  and  business  shall  be  in  the  hands  of  a  board  of  education,  consist- 
ing of  such  numbers,  elected  in  such  manner  as  the  general  school  laws 
of  the  state  shall  provide,  and,  until  the  first  election  under  said  laws  of 
a  full  board  of  education,  which  shall  be  had  at  the  first  election  held  after 
the  adoption  of  this  amendment,  all  the  directors  of  school  district  No.  1 
and  the  respective  presidents  of  the  school  boards  of  sc  ool  districts  Nos. 
2,  7,  17,  and  21,  at  the  time  this  amendment  takes  effect,  shall  act  as 
such  board  of  education,  and  all  districts  or  special  charters  now  existing 
are  hereby  abolished. 

The  said  board  of  education  shall  perform  all  the  acts  and  duties 
required  to  be  performed  for  said  district  by  the  general  laws  of  the  state. 


504     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Except  as  inconsistent  with  this  amendment,  the  general  school  laws  of 
the  state  shall,  unless  the  context  evinces  a  contrary  intent,  be  held  to 
extend  and  apply  to  the  said  "District  No.  1." 

Upon  the  annexation  of  any  contiguous  municipality  which  shall  in- 
clude a  school  district  or  districts,  or  any  part  of  a  district,  said  school 
district  or  districts  or  part  shall  be  merged  in  said  "District  No.  1," 
which  shall  then  own  all  the  property  thereof,  real  and  personal,  located 
within  the  boundaries  of  such  annexed  municipality,  and  shall  assume 
and  pay  all  the  bonds,  obligations  and  indebtedness  of  each  of  the  said 
included  school  districts,  and  a  proper  proportion  of  those  of  partially 
included  districts. 

Provided,  however,  That  the  indebtedness,  both  principal  and  interest, 
which  any  school  district  may  be  under  at  the  time  when  it  becomes  a 
part,  by  this  amendment  or  by  annexation,  of  said  "District  No.  1," 
shall  be  paid  by  said  school  district  so  owing  the  same  by  a  special  tax, 
to  be  fixed  and  certified  by  the  board  of  education  to  the  council,  which 
shall  levy  the  same  upon  the  property  within  the  boundaries  of  such 
district,  respectively,  as  the  same  existed  at  the  time  such  district  be- 
comes a  part  of  said  "District  No.  1,"  and  in  case  of  partially  included 
districts,  such  tax  shall  be  equitably  apportioned  upon  the  several  parts 
thereof. 

Sec.  8.  Anything  in  the  constitution  of  this  state  in  conflict  or  in- 
consistent with  the  provisions  of  this  amendment  is  hereby  declared  to  be 
inapplicable  to  the  matters  and  things  by  this  amendment  covered  and 
provided  for. 

In  respect  to  these  elaborate  home  rule  provisions  of  the  Colo- 
rado constitution  the  following  points  of  interest  may  be  listed : 

(1)  The  consolidation  of  the  city  of  Denver  with  a  portion  of 
Arapahoe  County  was  made  directly  by  the  amendment  itself 
and  became  effective  immediately  upon  the  proclamation  of  the 
governor.1     A  considerable  part  of  the  amendment  was  concerned 
with  the  regulation  of  details  in  respect  to  the  manner  in  which 
this  consolidation  should  be  effected  and  with  provisions  for  the 
government  of  the  merged  corporation  in  the  interim  between 
the  adoption  of  the  amendment  and  the  local  adoption  of  a  char- 
ter which  should  establish  a  new  form  of  government  for  the  single 
corporation. 

(2)  Certain  broad  powers  of  the  consolidated  corporation  were 
expressly  enumerated  in  the  first  section  of  the  amendment,  but 

1  Denver  v.  Adams  County,  33  Col.  1  (1904)  ;  infra,  527. 


HOME  RULE  IN  COLORADO  505 

obviously  this  enumeration  was  not  intended  to  be  exclusive  in 
character.1 

(3)  The  consolidated  corporation  of  Denver  was  not  permitted 
to  exercise  in  its  discretion  the  home  rule  powers  conferred.     On 
the  contrary  it  was  specifically  required  to  frame  and  adopt  a 
charter ;  and  in  the  event  of  the  defeat  of  any  charter  at  the  polls 
it  was  compelled  to  repeat  the  process  of  framing  and  submitting 
a  charter  until  an  instrument  acceptable  to  the  voters  should  be 
drafted. 

(4)  The  school  districts  included  within  the  limits  of  the  con- 
solidated corporation  were  likewise  consolidated  into  a  single 
district  which  itself  constituted  a  corporation ; 2   but  apparently 
the  affairs  of  this  corporation  were  to  be  regulated  entirely  under 
the  general  laws  of  the  state. 

(5)  The  right  to  frame  a  charter  was  conferred  upon  all  cities 
of  the  first  and  second  classes  in  the  state,  which  included  all  cities 
of  more  than  two  thousand  inhabitants;    and  the  same  process 
of  framing,  adopting,  and  amending  charters  which  was  laid  down 
for  Denver  was  made  applicable  to  these  other  cities.     Such  cities, 
however,  were  not  vested  with  power  to  effect  any  consolidation 
of  their  governments  with  county  governments. 

Acting  up  to  the  requirements  of  the  home  rule  amendment 
delegates  to  a  charter  convention  were  elected  in  Denver  in  June, 
1903.  A  charter  of  a  fairly  progressive  character  was  framed  and 
submitted  to  the  electorate  in  September,  but  being  bitterly 
opposed  by  both  party  machines,  this  charter  was  defeated.  In 
December  of  the  same  year  a  second  convention  was  elected,  and 
in  March,  1904  the  charter  framed  by  this  convention  was  rati- 
fied at  the  polls.  This  charter  has  never  been  completely  revised, 
but  it  has  been  amended  in  a  number  of  respects  since  its  adop- 
tion. In  1912  it  was  so  fundamentally  amended  as  to  abolish 
the  mayor-and-council  type  of  organization  and  to  substitute 
in  its  place  the  commission  form  of  government. 

1  Infra,  532. 

2  The  writing  of  this  provision  of  the  amendment  was  prompted  by  the  fact  that 
all  attempts  of  the  legislature  to  consolidate  the  school  districts  of  Denver  had  been 
frustrated  by  the  supreme  court. 


506     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Colorado  Springs  and  Grand  Junction  adopted  home  rule 
charters  in  1909.  Pueblo  was  added  to  the  list  in  1911  and  the 
small  city  of  Montrose  in  1914.  The  charters  of  all  of  these  cities 
provided  for  the  commission  type  of  government.  Trinidad, 
with  ten  thousand  inhabitants,  is  the  largest  city  of  Colorado  that 
is  not  operating  under  a  charter  of  its  own  making. 

The  "Constitutionality"  of  the  Home  Rule  Amendment 

It  appears  that  the  home  rule  amendment  of  1902,  popularly 
known  as  the  "Rush  Amendment/'  was,  for  reasons  that  it  is 
unnecessary  to  recount,  bitterly  opposed  by  certain  powerful 
interests  in  Colorado.  Scarcely  had  the  governor  proclaimed 
its  ratification  when  it  was  assailed  before  the  courts  in  the  case 
of  People  ex  rel.  Elder  v.  Sours  1  on  the  ground  that  it  had  not  been 
constitutionally  adopted.  One  dissenting  and  two  concurring 
opinions  were  written  in  this  case ;  but  the  validity  of  the  amend- 
ment was  sustained  upon  the  points  raised  against  it.  We  are 
in  no  wise  interested  in  the  views  expressed  upon  the  subject 
of  whether  the  prescribed  constitutional  procedure  for  amending 
the  fundamental  law  had  or  had  not  been  properly  followed.  This 
was  the  only  issue  discussed  in  all  of  the  opinions  rendered.  In  the 
affirmative  opinion  of  Mr.  Justice  Steele,  however,  a  wholly  dif- 
ferent issue  was  discussed,  this  being  the  question  as  to  whether 
the  amendment  was  void  because  of  its  conflict  with  that  clause 
of  the  federal  constitution  which  guarantees  to  every  state  a 
republican  form  of  government.  The  contention  was  that  the 
amendment  did  not  contemplate  that  the  constitution  and  laws 
of  Colorado  should  be  in  force  at  all  in  the  consolidated  city  and 
county  of  Denver,  but  that  the  charter,  being  declared  to  be  the 
"organic  law  thereof,"  should  "displace  the  constitution,  the  laws, 
and  the  general  assembly,"  thus  creating  a  state  within  a  state. 
In  answer  to  this  contention  the  learned  judge  argued  as  follows : 

If  this  amendment  must  be  given  that  construction,  it  cannot  be 
sustained.  Even  by  constitutional  amendment,  the  people  cannot  set 

!31  Colo.  369.     1903. 


HOME   RULE  IN  COLORADO  507 

apart  any  portion  of  the  state  in  such  manner  that  that  portion  of  the  state 
shall  be  freed  from  the  constitution,  or  delegate  the  making  of  constitu- 
tional amendments  concerning  it  to  a  charter  convention,  or  give  to  such 
charter  convention  the  power  to  prescribe  the  jurisdiction  and  duties  of 
public  officers  with  respect  to  state  government  as  distinguised  from 
municipal,  or  city,  government.  The  duties  of  judges  of  the  district 
court,  county  judges,  district  attorneys,  justices  of  the  peace,  and  gener- 
ally, of  county  officers,  are  mainly  governmental ;  and,  so  far  as  they  are 
governmental,  they  may  not  be  controlled  by  other  than  state  agencies 
without  undermining  the  very  foundation  of  our  government.  Under 
the  constitution  of  the  United  States,  the  state  government  must  be  pre- 
served throughout  the  entire  state,  and  it  can  be  so  preserved  only  by 
having  within  every  political  subdivision  of  the  state,  such  officers  as  may 
be  necessary  to  perform  the  duties  assumed  by  the  state  government, 
under  the  general  laws  as  they  now  exist  or  as  they  may  hereafter  exist. 

This  distinction  between  the  governmental  duties  of  public  officers 
and  their  municipal  duties  is  fundamental,  and  therefore  is  not  avoided 
or  affected  by  the  consolidation.  .  .  . 

The  respondent's  construction,  however,  is  not  that  placed  upon  the 
amendment  by  the  counsel  for  the  petitioners,  or,  we  assume,  by  the 
people.  The  provision  that  "Every  charter  shall  designate  the  officers 
who  shall,  respectively,  perform  the  acts  and  duties  required  of  county 
officers  to  be  done  by  the  constitution  or  by  the  general  law,  as  far  as 
applicable,"  completely  contradicts  the  assumption  that  the  amendment 
regards  such  duties  as  being  subject  to  local  regulation  and  control.  The 
amendment  is  to  be  considered  as  a  whole,  in  view  of  its  expressed  purpose 
of  securing  to  the  people  of  Denver  absolute  freedom  from  legislative 
interference  in  matters  of  local  concern;  and,  so  considered  and  inter- 
preted, we  find  nothing  in  it  subversive  of  the  state  government,  or  repug- 
nant to  the  constitution  of  the  United  States. 

It  may  be  open  to  question  whether  the  judge  was  not  pro- 
ceeding too  far  when  he  expressed  the  view  that  a  state  was  pre- 
vented by  the  United  States  constitution  from  vesting,  by  the 
terms  of  its  own  constitution,  power  in  a  local  subdivision  of  the 
state  "to  prescribe  the  jurisdiction  and  duties  of  public  offices 
with  respect  to  state  government  as  distinguished  from  municipal, 
or  city,  government,"  and  when  he  asserted  on  the  same  ground 
that  the  duties  of  such  officers  as  district  and  county  judges  and 
attorneys,  justices  of  the  peace,  and  county  officers  " generally " 
could  not,  even  under  express  sanction  of  the  state  constitution, 


508     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

"be  controlled  by  other  than  state  agencies."  It  is  quite  true 
that  a  state  would  be  powerless  to  create  out  of  a  portion  of  its 
territory  a  "state"  within  every  meaning  of  that  term  as  it  is  used 
in  the  federal  constitution;  for  such  a  "state"  would  have  to 
be  admitted  to  the  Union  by  Congress  before  it  could  elect  con- 
gressmen or  senators  or  participate  in  presidential  elections  — 
functions  which,  under  the  contemplation  of  that  constitution, 
must  be  performed  by  every  state.  It  is  also  true  that  a  consti- 
tutional scheme  which  completely  liberated  a  designated  part  of 
a  state  from  all  obligation  to  enforce  any  and  every  state  law,  and 
vested  in  the  people  of  the  territory  thus  set  off  power  to  legislate 
practically  without  restriction  on  every  possible  subject  of  state 
control,  would  be  a  manifest  absurdity.  Even  so,  it  is  difficult 
to  see,  barring  possibly  in  respect  to  some  matters  the  guarantee 
of  the  equal  protection  of  the  laws,  what  clause  of  the  federal 
constitution  might  be  invoked  to  defeat  such  a  scheme.  How 
could  the  vague  guarantee  of  a  republican  form  of  government  be 
applied?  In  the  view  of  the  United  States  Supreme  Court  this 
is  a  guarantee  that  is  exclusively  committed  for  enforcement  to 
the  political  departments  of  the  federal  government  and  as  such  is 
wholly  outside  the  jurisdiction  of  courts.1  Moreover,  if  this  were 
not  so,  the  government  established  by  the  people  of  the  territory 
so  privileged  might  in  plain  fact  be  far  more  republican  in  form 
(whatever  that  term  may  precisely  import)  than  that  of  the 
state  as  a  whole ;  and  it  would  certainly  be  a  part  of  the  govern- 
ment of  the  state,  for  its  sanction  would  lie  wholly  in  the  consti- 
tution of  the  state,  which  might  at  any  time  be  altered. 

There  exists  high  authority  for  the  assertion  that  the  legisla- 
ture of  a  state,  in  the  absence  of  state  constitutional  restriction, 
may  give  to  a  municipal  corporation  such  large  powers  as  to  make 
it  "a  miniature  state  within  its  locality."2  Surely  if  the  legis- 
lature enjoys  such  power  as  this,  the  makers  of  the  fundamental 
law  of  a  state  enjoy  equally  large  power. 

However  this  may  be,  the  point  of  importance  is  that  Judge 
Steele  specifically  declared  in  the  opinion  above  quoted  that  the 

1  Infra,  525.       2  Barnes  v.  District  of  Columbia,  91  U.  S.  540  (1875) ;  supra,  16. 


HOME  RULE  IN   COLORADO 


509 


home  rule  amendment  in  Colorado  did  not  purport  to  establish 
any  such  scheme.  That  amendment  in  the  plainest  possible 
terms  recognized  that  the  constitution  and  the  general  laws  of 
the  state,  in  so  far  at  least  as  they  imposed  duties  upon  county 
officers,  should  be  enforced  within  the  city  and  county  of  Denver. 
The  people  of  this  corporation  were  empowered,  through  the 
medium  of  their  charter,  merely  to  designate  the  officials  who 
should  perform  such  duties  as  were  imposed  upon  county  officers 
by  the  constitution  and  the  general  laws. 

The  first  municipal  election  under  the  home  rule  charter  of 
Denver  was  held  in  May,  1904.  At  this  election  officers  were 
chosen  for  the  merged  city  and  county  government,  many  of  them 
being  required  by  the  charter  to  perform  functions  of  county  as 
well  as  of  city  officers.  In  November  of  the  same  year  occurred 
the  general  state  election  at  which  county  officers  were  to  be  chosen 
in  all  the  counties  of  the  state  except  presumably  in  the  consoli- 
dated city  and  county  of  Denver.  In  spite  of  the  obvious  con- 
templation of  the  home  rule  provision  of  the  constitution,  as  well 
as  of  the  charter  framed  in  pursuance  thereof,  that  the  charter 
officers  of  Denver  should  perform  county  functions,  all  the  county 
officers  that  were  required  by  the  laws  of  the  state  for  counties 
generally  were  at  this  general  election  chosen  for  Denver. 

A  number  of  cases,  popularly  known  as  the  "county  offices  elec- 
tion cases,"  were  immediately  taken  into  court  to  test  the  legality 
of  the  election  of  these  county  officers  and  to  determine  whether 
the  officers  chosen  under  the  provisions  of  the  charter  were  ousted 
from  the  performance  of  county  functions.  The  leading  of  these 
cases  was  that  of  the  People  ex  rel.  the  Attorney  General  v.  John- 
son1 which  concerned  the  office  of  county  judge.  Practically  the 
only'question  before  the  court  in  this  and  the  other  cases  of  this 
group  was  whether  the  constitutional  amendment,  in  so  far  as 
it  authorized  the  people  of  the  city  and  county  of  Denver  to  desig- 
nate the  officers  who  should  perform  county  functions  as  pre- 
scribed by  state  laws,  was  or  was  not  itself  invalid.  Or,  to  employ 
the  more  general  language  of  the  court,  the  question  was :  "Can 

1  34  Col.  143.     1905. 


510     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  people  of  the  state  by  constitutional  amendment  set  apart 
any  portion  of  the  state  and  vest  the  citizens  thereof  with  power 
to  legislate  upon  matters  other  than  those  purely  local  and  strictly 
municipal  in  their  character?"  So  far  as  can  be  gathered  from 
the  somewhat  muddle-headed  opinion  that  was  handed  down  by 
the  court,  speaking  through  Mr.  Justice  Maxwell,  the  validity 
of  the  amendment  was  assailed  in  this  respect  on  the  ground  that 
it  established  a  government  that  was  not  republican  in  form. 

It  would  seem,  however,  that  the  court  was  also  influenced  to 
an  extent  by  the  almost  unbelievable  notion  that  the  amendment 
likewise  violated  certain  provisions  of  the  state  constitution  as 
they  existed  at  the  time  of  its  adoption.  Just  how  a  subsequently 
adopted  constitutional  provision,  which  expressly  repealed  all 
existing  provisions  in  conflict  therewith,1  could  be  held  to  be  in 
violation  of  the  instrument  of  which  it  became  an  integral  part 
does  not  appear. 

It  is  perhaps  unnecessary  to  quote  here  in  detail  from  the  opinion 
that  was  expressed.  It  is  sufficient  to  say  that,  taking  the  above- 
quoted  views  of  Mr.  Justice  Steele  in  the  Sours  case,  the  court 
with  utter  shamelessness  warped  them  in  such  manner  as  to  sus- 
tain the  invalidity  of  the  constitutional  amendment  as  to  the 
point  involved  in  the  case.  It  was  declared  that  the  question 
presented  in  the  Johnson  case  was  upon  the  authority  of  the  Sours 
case  "not  an  open  one"  but  "must  be  held  to  be  stare  decisis." 
The  utter  sophistication  of  the  reasoning  of  the  court  in  this  John- 
son case  is  shown  in  the  following  declaration  that  was  made : 

To  concede  that  article  XX  authorizes  a  charter  convention  to  legis- 
late upon  any  subject  whatever,  in  contravention  of  any  of  the  provisions 
of  the  constitution  relative  to  governmental  or  state  matters  or  to  county 
or  state  offices  and  officers,  is  to  concede  that  such  convention  might  dis- 
place the  constitution  in  every  respect,  and  the  charter,  being  .the  organic 
law  of  the  city  and  county,  would  thereby  become  supreme  within  the 
territory  included  in  the  boundaries  of  the  city  and  county;  hence  we 
would  have  a  portion  of  the  state  freed  from  the  constitution  —  over  which 
the  state  had  no  right  to  legislate  —  which  could  have  no  interest  what- 
ever in  any  legislation  which  might  be  enacted  by  the  state  relating  to 

1  Supra,  504. 


HOME  RULE  IN  COLORADO  511 

state  and  governmental  affairs.  In  short,  an  imperium  in  imperio,  a 
condition  which  cannot  be  brought  about  or  exist  even  by  constitutional 
amendment,  as  emphatically  decided  by  the  majority  opinion  in  the 
Sours  case. 

The  plain  fact  is  that  the  constitution  authorized  the  charter 
convention  only  to  designate  the  officers  who  should  perform  those 
duties  hi  respect  to  ''governmental  or  state  matters"  which  were 
imposed  upon  county  officers  by  the  constitution  and  general  laws 
of  the  state.  It  is  well-nigh  incredible  that  the  court,  in  the  face 
of  this  specifically  limited  grant  of  power  to  the  people  of  the  city 
and  county,  should  have  had  the  temerity  to  assert  that  to  concede 
the  competence  of  the  charter  convention  to  regulate  this  specific 
matter  of  state  concern  was  to  concede  "that  such  convention 
might  displace  the  constitution  in  every  respect." 

As  another  indication  of  the  obvious  lack  of  logic  that  was 
shown  by  the  court  in  this  case,  attention  may  be  called  to  the 
part  of  the  opinion  which  emphasized  the  fact  that  other  cities  of 
the  state  which  were  empowered  to  frame  charters  might,  follow- 
ing the  lead  of  the  city  and  county  of  Denver,  break  away  "from 
the  straight  and  narrow  path  of  constitutional  limitation"  and 
attempt  to  free  themselves  from  the  restrictions  of  the  constitu- 
tion that  might  be  irksome  to  them.  When  it  is  noted  that  no 
other  city  of  the  state  was  by  the  constitutional  amendment 
given  any  power  to  effectuate  a  consolidation  of  city  and  county 
governments  but  was  granted  merely  the  power  to  frame  a  charter 
for  the  government  of  the  city,  it  is  manifest  that  the  court  was 
creating  out  of  its  own  imagination  the  specter  of  a  possible  dis- 
memberment of  the  state.  Indeed,  after  a  careful  perusal  of  the 
opinion  handed  down  in  the  Johnson  case,  one  cannot  escape  the 
conclusion  that  the  court,  for  some  reason  that  appears  neither  in 
nor  between  the  lines,  was  determined  at  any  sacrifice  to  invali- 
date in  part  at  least  the  provisions  of  this  revolutionary  constitu- 
tional amendment. 

Although  Mr.  Justice  Steele,  hi  a  dissenting  opinion,  which  was 
concurred  in  by  only  one  other  member  of  the  court  and  which 
was  characterized  by  an  admirable  display  of  temperance  and 


512     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

poise,  utterly  repudiated  the  violent  twist  that  was  given  to  the 
views  he  had  expressed  in  the  Sours  case,  the  doctrine  of  the 
Johnson  case  was  nevertheless  reaffirmed  and  reapplied  in  the 
other  cases  involving  the  election  of  county  officers  in  Denver, 
including  such  officers  as  the  assessor,1  the  clerk  and  recorder,2  the 
treasurer,3  the  justices  of  the  peace,4  the  constable,5  the  county 
commissioners,6  and  the  sheriff.7  Likewise  at  the  next  term  of 
court,  the  doctrine  of  the  Johnson  case  was  reaffirmed  in  respect 
to  the  office  of  coroner,8  it  being  held  also  at  this  time  that  the 
city  and  county  of  Denver  was  not  competent  to  change  the  time 
of  election  nor  the  term  and  tenure  of  county  officers. 

It  is  not  surprising  that  the  decision  of  these  cases  led  to  a  storm 
of  popular  disapproval  hi  Denver  and  that  ugly  accusations  were 
hurled  with  some  vehemence.  With  the  truth  or  falseness  of  these 
accusations  we  are  not  concerned ;  but  it  is  interesting  to  note  in 
passing  that  one  of  their  results  was  a  judgment  of  "constructive 
contempt"  rendered  by  the  supreme  court  against  Senator  Thomas 
M.  Patterson  for  the  publication  in  his  Denver  newspapers  of 
somewhat  violent  criticisms  of  the  court.  These  criticisms  were 
published  after  the  decision  of  the  "county  offices  election  cases " 
but  before  the  application  for  a  rehearing  of  these  cases  had  been 
passed  upon.9 

By  the  decision  of  these  cases  the  provisions  of  the  home  rule 
amendment  of  1902  and  of  the  first  charter  of  the  city  and  county 
of  Denver  framed  in  pursuance  thereof  were  wholly  annulled  in  so 
far  as  a  consolidation  of  the  offices  of  the  city  and  county  govern- 
ment was  sought  to  be  effected.  At  every  general  election  during 

1  People  ex  rel.  Stidger  v.  Alexander,  34  Col.  193.     1905. 

2  Byrne  v.  The  People  ex  rel.  Stidger,  34  Col.  196.     1905. 

3  People  ex  rel.  Stidger  v.  Elder,  34  Col.  197.     1905. 

4  People  ex  rel.  Harrington  v.  Rice,  34  Col.  198.     1905. 

5  People  ex  rel.  Stidger  v.  Berger,  34  Col.  199.     1905. 

6  People  ex  rel.  Lawson  v.  Stoddard,  34  Col.  200.     1905. 

7  People  ex  rel.  Nisbet  v.  Armstrong,  34  Col.  204.     1905. 

8  People  ex  rel.  Stidger  v.  Koran,  34  Col.  304.     1905. 

•  People  v.  News-Times  Publishing  Co.,  35  Col.  253  (1906).  This  case  furnishes 
rather  interesting  readingfwhatever  may  be  its  value  on  points  of  law.  Mr.  Justice 
Steele  here  again  found  himself  in  the  dissenting  minority. 


HOME  RULE  IN  COLORADO  513 

the  next  six  years  county  officers  were  elected  in  Denver,  just  as 
in  all  other  counties  of  the  state,  and  there  was  hi  consequence  no 
realization  of  the  economy  of  administration  and  simplicity  of 
government  which  were  among  the  objects  sought  to  be  attained 
by  the  amendment. 

Prompted  by  the  fact  that  there  had  been  changes  in  the  per- 
sonnel of  the  supreme  court  since  the  decision  of  the  far-famed 
"county  offices  election  cases/'  certain  citizens  of  Denver  in  the 
year  1911  brought  before  the  court  for  reconsideration  the  identi- 
cal question  that  was  decided  hi  these  cases.  In  the  case  of 
People  ex  rel.  Attorney  General  v.  Cassiday l  the  doctrine  of  the 
Johnson  case  was  utterly  repudiated,  only  two  out  of  seven  jus- 
tices dissenting.  The  majority  of  the  court,  delivering  through 
Mr.  Justice  Bailey,  relied  upon  the  dissenting  opinions  of  Mr. 
Justice  Steele  hi  the  Johnson  case  and  of  Mr.  Justice  Gunter  in 
People  ex  rel  Stidger  v.  Horan.2  These  dissenting  opinions  were 
declared  to  be  "convincing,  exhaustive,  and  unanswerable."  It 
was  apparent  throughout  the  entire  opinion  handed  down  in  the 
Cassiday  case  that  the  court  was  discussing  previously  expressed 
views  of  the  same  tribunal  for  which  it  held  no  toleration  what- 
ever. "Why  scrutinize  Article  XX  hi  a  hostile  spirit,"  it  was 
asked,  "or  treat  it  as  an  interloper?"  And  having  pointed  to 
the  unmistakable  fact  that  the  amendment  did  not  seek  entirely 
to  oust  from  the  consolidated  corporation  of  Denver  the  operation 
of  the  constitution  and  of  the  general  laws  of  the  state  relating  to 
county  affairs  but,  on  the  contrary,  clearly  required  that  county 
functions  should  be  performed  therein,  the  court  propounded  the 
following  questions : 

How,  possibly,  can  the  fact  that  different  agencies  than  those  provided 
for  other  counties  of  the  state  are  in  this  territory  to  perform  governmental 
duties,  when  all  such  functions  are  carefully  preserved  and  their  discharge 
provided  for,  be  held  in  any  manner  to  affect  state  government?  What 
federal  inhibition  is  invaded  because  the  officers  so  designated  may  be 
chosen  in  the  early  springtime  rather  than  in  the  autumn,  that  they  serve 
for  four  years  rather  than  two,  that  they  are  designated  by  one  official 
title  instead  of  another,  or  that  one  set  of  officers  is  named  to  discharge 

1  50  Colo.  503.     1911.  J  Supra,  512. 


514  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  duties  in  that  territory  pertaining  to  both  local  and  governmental 
affairs,  since  all  such  governmental  acts  and  duties  are  retained  intact 
therein  and  are  to  be  fully  performed? 

The  small  esteem  —  not  to  say  disgust  —  in  which  the  doctrine 
of  the  Johnson  case  was  now  held  was  shown  when  the  court 
declared : 

Until  the  ingenuity  and  invention  of  the  human  intellect  shall  have 
conceived  and  formulated  —  which  has  not  yet  been  done  —  some  sound, 
or  even  plausible  reason  for  the  conclusion  reached  in  the  Johnson  case, 
that  article  XX  provides  for  the  city  and  county  of  Denver  a  govern- 
ment unrepublican  in  form,  that  decision  must  remain,  as  it  now  is, 
wholly  unaccountable  and  incomprehensible,  for  it  must  be  that  the  con- 
clusion rests  upon  that  assumption,  else  it  is  wholly  unsupported. 

Again,  toward  the  end  of  the  opinion,  it  was  asserted  : 

It  is  unnecessary  for  this  court  to  say,  to  escape  the  application  of  the 
doctrine  of  stare  decisis,  that  the  decision  in  the  Johnson  case  is  obviously, 
palpably  and  manifestly  wrong ;  such  bald  statements  add  nothing  to  the 
fact.  In  the  discussion  as  to  the  correctness  of  the  reasoning  of  the 
Johnson  case,  it  has,  we  think,  been  demonstrated  that  upon  no  theory 
can  it  be  upheld.  It  is  distinctively  and  fundamentally  wrong  in  that  it 
declines  to  recognize  as  effective  and  in  operation  a  provision  of  the  state 
constitution,  about  the  propriety  and  meaning  of  which  there  is  no  room 
for  two  opinions,  and  thus  the  court,  in  that  case,  by  the  strength  of  judi- 
cial power,  excludes  that  provision,  although  it  bespeaks  a  policy  ap- 
proved and  adopted  by  the  whole  people,  whose  exclusive  and  sovereign 
rights  and  prerogatives,  in  that  behalf,  are  thereby  abrogated  and  thrust 
aside  as  if  mythical  and  unreal. 

The  decision  of  the  Cassiday  case  operated  to  oust  the  incum- 
bents of  all  county  offices  in  the  city  and  county  of  Denver  and  to 
restore  the  provisions  of  the  charter  by  which  the  functions  of 
county  officers  were  imposed  upon  officials  who  for  the  most  part 
performed  joint  city  and  county  functions.  This  was  to  simplify 
the  government  of  the  city  and  county  and  to  introduce  the  econ- 
omies which  had  been  sought  to  be  accomplished  by  the  constitu- 
tional merger  of  the  two  local  governments  into  one. 

Acting  upon  the  assumption  that  the  rule  laid  down  in  the 
Cassiday  case  applied  to  the  office  of  judge  of  the  county  court  as 


HOME  RULE  IN  COLORADO  515 

well  as  to  all  other  county  offices,  the  people  of  the  city,  at  the 
regular  municipal  election  held  in  May,  1912,  elected  in  accordance 
with  the  terms  of  the  local  charter  two  county  judges.  In  Dixon 
v.  The  People  l  it  was  held,  however,  that  the  rule  of  the  Cassiday 
case  did  not  apply  to  the  office  of  county  judge.  This  officer  was 
not  a  county  officer  within  the  meaning  of  the  constitution.  Coun- 
ties, said  the  court,  were  subdivisions  of  the  state  created  for  the 
purpose  of  aiding  in  the  administration  of  governmental  affairs. 
They  were  also  quasi-corporations.  On  the  other  hand,  territo- 
rial divisions  or  districts  that  were  established  for  judicial  pur- 
poses had  no  semblance  of  a  corporate  character.  The  mere  fact 
that  the  constitution  selected  the  county  as  one  of  the  judicial 
districts  of  the  state  did  not  make  the  functions  of  the  court 
county  functions  nor  the  officers  of  such  court  county  officers. 
This  view  received  additional  support,  so  the  court  thought, 
from  the  fact  that  article  fourteen  of  the  constitution,  which  dealt 
with  the  subject  of  county  government  and  enumerated  certain 
county  officers,  did  not  mention  the  county  judge  in  the  list  so 
enumerated. 

When  the  court's  attention  was  called  to  the  fact  that  in  the 
Johnson  case  it  was  specifically  the  office  of  county  judge  that  was 
in  controversy,  the  reply  was  made  that  the  decision  of  that  case 
was  not  hi  fact  confined  to  the  precise  issue  therein  presented,  but 
that  the  general  issue  involved  in  all  of  the  so-called  "county 
offices  election  cases"  had  been  considered  in  the  single  opinion 
that  was  rendered.  In  this  reply  the  court  unquestionably  de- 
scribed with  accuracy  the  purport  of  the  opinion  in  the  Johnson 
case.  It  may  be  submitted,  nevertheless,  that  in  combining  the 
specific  issue  of  that  case  with  the  general  issue  involved  in  the  other 
county  offices  cases  the  court  clearly  implied  that  the  office  of  county 
judge  was  in  precisely  the  same  category  with  all  other  county  of- 
fices. Moreover,  the  court  seems  to  have  ignored  an  obvious 
implication  of  section  three  of  the  home  rule  amendment.  This 
section,  after  specifying  the  several  existing  city  or  county  officers 
who  should  perform  functions  after  the  merger  of  city  and  county 

1  53  Col.  527.     1912. 


516     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

governments  was  effected  but  before  a  new  charter  should  have 
been  adopted,  declared  that  the  officers  so  designated  should 
hold  their  respective  offices  until  their  successors  were  duly  elected 
and  qualified,  " except  that  the  then  district  judge,  county  judge, 
and  district  attorney  shall  serve  their  full  terms."  The  question 
may  certainly  with  some  reason  be  asked  why  there  was  any  neces- 
sity here  for  the  mention  of  the  county  judge  if  this  officer  was  not 
at  the  tune  a  county  officer  and  was  not  to  become  an  officer  of 
the  consolidated  city  and  county. 

There  is  no  question,  moreover,  that  (subject  to  the  single 
specific  limitation  that  the  county  judge  in  office  should  serve  out 
his  full  term)  there  was  here  a  forceful  implication  to  the  effect  that 
at  least  a  degree  of  control  over  this  officer  was  by  the  amendment 
transferred  to  the  city.  However,  the  opinion  in  the  Dixon  case 
stands,  and  under  its  pronouncement  the  county  judge  is  re- 
moved from  any  possible  control  by  provisions  of  the  locally  made 
charter  of  the  consolidated  corporation. 

In  spite  of  the  vehement  repudiation  of  the  doctrine  of  the 
Johnson  case  hi  the  Cassiday  case,  it  should  be  noted  that  in  two 
cases  thereafter  decided  the  notion  appeared  still  to  dominate  the 
mind  of  the  Colorado  court  that  certain  powers  of  home  rule  were 
beyond  the  competence  of  the  people  to  confer  through  the  me- 
dium of  a  constitutional  amendment.  This  was  clearly  shown  in 
the  decision  in  1912  of  the  case  of  Mauff  v.  People l  —  a  case  which 
will  be  considered  in  further  detail  at  a  later  point.  This  case 
involved  an  issue  of  conflict  between  a  state  law  and  a  charter 
provision  regulating  a  matter  pertaining  to  elections.  In  the 
course  of  the  opinion  rendered  it  was  boldly  declared  that  "if  by 
Article  XX  it  had  been  undertaken  to  free  the  people  of  the  city 
and  county  of  Denver  from  the  state  constitution,  from  statute 
law,  and  from  the  authority  of  the  general  assembly,  respecting 
matters  other  than  those  purely  of  local  concern,  that  Article  could 
not  have  been  upheld."  The  court  did  not,  it  is  true,  indicate  the 
specific  grounds  upon  which  the  provision  could  have  been  held 
to  be  invalid,  had  it  conferred  power  in  respect  to  matters  other 

1  52  Col.  562  (1912)  ;   infra,  543. 


HOME  RULE  IN  COLORADO  517 

than  those  purely  of  local  concern.  It  would  seem,  however, 
that  there  was  here  nothing  more  nor  less  than  a  revival  of 
something  that  was  closely  akin  to  the  doctrine  of  the  Johnson 
case. 

Again  in  the  case  of  Hilts  v.  Markey,1  decided  in  the  same  year 
as  the  Mauff  case,  the  question  was  raised  as  to  whether  a  pro- 
vision of  the  Denver  charter  which  limited  the  tax  levy  to  fifteen 
mills  could  be  construed  as  limiting  the  tax  levy  for  county  as  well 
as  for  city  purposes.  Reviewing  the  opinion  expressed  in  the 
Cassiday  case,  as  well  as  that  given  in  the  early  case  of  People  v. 
Sours,  the  court  declared  it  to  be  conclusive  "that  the  people  of 
the  city  and  county  of  Denver  have  no  power  whatever  to  legis- 
late hi  the  slightest  degree  upon  any  matter  solely  affecting  state 
and  county  affairs."  It  was  expressly  averred  that  no  other  con- 
struction of  Article  XX  "was  possible  if  the  article  was  to  stand" 
If,  therefore,  the  charter  should  be  held  to  have  "undertaken  to 
legislate  upon,  or  in  any  way  control  and  fix,  the  method  of  mak- 
ing, or  the  amount  of  the  levy,  ...  for  county  purposes,  such 
attempt  is  futile,  because  that  is  a  matter  solely  under  state  control 
and  may  not  be  interfered  with  in  any  way  by  local  legislation." 
Within  the  consolidated  municipality,  it  was  declared,  there  were 
"two  governmental  entities,  a  county  with  county  duties,  as  pro- 
vided by  the  general  state  law,  and  the  consolidated  municipality 
of  the  city  and  county  of  Denver,  with  duties  wholly  of  a  local 
character."  The  duties  of  both  of  these  governmental  entities 
were  indeed  to  be  performed  by  a  single  set  of  officers.  But  such 
of  their  duties  as  were  "of  state  and  county  governmental  import" 
were  fixed  by  the  constitution  and  general  laws.  In  respect  to 
these  the  people  of  the  city  and  county  could  not  legislate.  The 
designation  "City  and  County  of  Denver"  was  a  confusing  mis- 
nomer. It  should  have  been  rather  "The  Municipality  of  Den- 
ver" or  "The  Corporation  of  Denver."  Had  a  designation  of  the 
latter  character  been  employed,  "there  could  have  been  no  doubt 
or  confusion  about  its  meaning."  Under  the  interpretation  which 
had  been  given  to  Article  XX  by  the  court  and  which  was  now 

1  52  Col.  382.     1912. 


518     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

reaffirmed,  the  term  "city  and  county  of  Denver"  had  and  could 
"only  have  reference  to  the  municipality  of  Denver  as  a  tity." 
This  being  the  case,  the  section  of  the  charter  imposing  a  limita- 
tion upon  the  tax  levy  could  apply  only  to  city  taxes.  The  people 
of  Denver  "could  no  more  legislate  upon  county  taxation,  which 
is  exclusively  subject  to  and  under  the  control  of  the  constitution, 
the  general  laws,  and  the  state  legislature,  than  they  could  upon  a 
question  of  state  revenue,  or  upon  the  matter  denning  the  duties 
of  a  state  officer,  or  upon  the  offense  of  grand  larceny."  Indeed 
so  self-evident  was  all  this  that  "the  wonder  is  that  such  contro- 
versies find  their  way  into  court  at  all."  Such  was  the  line  of 
argument  developed  by  the  court. 

With  due  deference  to  the  high  authority  which  was  the  source 
of  this  opinion,  it  is  nevertheless  exceedingly  difficult  to  be  con- 
vinced by  the  course  of  reasoning  that  was  employed.  The  con- 
stitution expressly  declared  that  "the  consolidated  city  and 
county"  should  be  a  "single  body  politic  and  corporate  by  the 
name  of  the  city  and  county  of  Denver."  A  single  body  politic 
in  which  there  should  exist  two  distinct  municipal  entities  is  mani- 
festly a  highly  metaphysical  concept.  One  of  the  most  impor- 
tant concrete  results  of  the  decision  of  the  court  in  the  Johnson 
case  was  that  the  county  government  of  the  consolidated  corpora- 
tion was  held  to  be  an  integer  which  could  not  be  destroyed  by 
the  consolidation  that  was  attempted  by  the  constitution.  The 
Cassiday  case  overruled  this  to  the  extent  of  holding  that  the 
identity  of  the  county  government,  so  far  at  least  as  separation  of 
offices  was  concerned,  was  validly  destroyed  by  the  constitutional 
provision  which  merged  the  officers  of  the  county  and  the  officers 
of  the  city  into  one  group  or  set  of  officers. 

The  Hilts  case  followed  by  laying  down  the  refinement  that  in 
spite  of  this  merger,  the  county  nevertheless  remained  a  separate 
and  distinct  entity,  which  it  was  beyond  the  power  of  the  people 
of  the  locality  in  any  wise  to  affect  save  that  they  might  designate 
the  officers  who  should  carry  on  the  functions  of  county  govern- 
ment. In  this  case  the  court  would  perhaps  have  been  justified 
in  holding  that,  since  the  home  rule  provision  of  the  constitution 


HOME  RULE  IN  COLORADO  519 

expressly  required  that  the  obligation  should  be  imposed  upon 
officers  of  the  consolidated  corporation  to  perform  the  functions 
laid  upon  county  officers  by  the  constitution  and  general  laws  of 
the  state,  the  people  of  Denver  were  hi  consequence  inhibited 
from  incorporating  into  their  charter  any  provisions  which  would 
be  hi  violation  of  any  general  law  relating  to  county  affairs.  This, 
however,  was  not  the  ground  upon  which  the  decision  of  the  case 
was  rested.  It  was  not  alleged  that  the  tax  limit  of  fifteen  mills 
was  in  conflict  with  any  state  law.  On  the  contrary,  the  decision 
turned  upon  the  broad  view  that  the  people  of  Denver  were  in- 
competent to  regulate  any  matter  of  county  concern,  regardless 
of  whether  such  matter  had  or  had  not  been  made  the  subject  of 
specific  regulation  by  state  law. 

It  is  well  nigh  impossible  to  commend  the  court's  interpreta- 
tion upon  this  point.  Suppose,  for  example,  that  the  home  rule 
amendment  had  expressly  empowered  the  people  of  the  consoli- 
dated corporation  to  regulate  through  the  medium  of  a  charter  of 
their  own  making  the  tax  levy  for  all  corporate  purposes.  The 
validity  of  the  provision  empowering  the  city  to  regulate  the 
election,  term,  tenure,  and  salary  of  officers  who  were  required  to 
perform  the  functions  of  county  officers  had  finally  been  sustained. 
On  what  possible  theory,  then,  could  the  court  have  ruled  out  of 
the  constitution  an  express  provision  which  empowered  the  city 
to  regulate  the  tax  levy  for  county  purposes  ?  There  was  certainly 
no  provision  of  the  amendment  which  either  in  terms  or  by  clear 
implication  prohibited  the  people  of  Denver  from  regulating  this 
matter.  Their  incompetence  in  this  respect  was  based  solely 
upon  the  view  that  if  the  amendment  conferred  power  to  legislate 
in  the  slightest  degree  upon  matters  affecting  county  affairs,  the 
amendment  itself  could  not  stand.  It  is  perfectly  obvious,  however, 
that  the  amendment  did  confer  upon  the  people  of  Denver  the 
authority  to  legislate,  to  some  degree  at  least,  in  respect  to  county 
affairs.  Where,  then,  could  the  line  be  drawn?  It  could  scarcely 
be  said  that  the  imposition  of  a  tax  limit  for  county  purposes  was 
any  more  inherently  a  county  affair  than  the  complete  control 
over  the  number,  the  manner  of  appointment  or  election,  the 


520  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

term  and  tenure,  and  the  salary  of  officers  who  were  to  perform 
county  functions.  The  argument  which  sustained  the  one  ex- 
press grant  could  have  been  invoked  with  equal  force  to  sustain 
the  other.  But  if  power  to  control  and  regulate  the  tax  levy  for 
county  purposes  could  have  been  expressly  and  directly  con- 
ferred by  the  constitutional  amendment,  just  as  the  control  of 
matters  pertaining  to  the  officers  who  should  perform  county 
duties  was  conferred,  how  could  it  be  declared  that  this  power 
had  not  been  vested  hi  the  people  of  the  consolidated  city  and 
county  because  it  was  a  matter  of  state  concern  which  could  not  be 
delegated  to  the  people  of  a  subdivision  of  the  state,  even  by  constitu- 
tional amendment? 

On  the  whole,  the  conclusion  is  unescapable  that  the  argument 
of  the  court  in  this  case  was  not  only  dangerously  close  to  that  of  the 
Johnson  case,  which  had  been  overruled  with  some  vigor  and 
asperity,  but  was  also  in  itself  very  nearly,  if  not  quite,  as  vulner- 
able as  to  its  logic. 

The  above  critical  analysis  of  the  opinion  in  this  case  is  based 
upon  an  assumption  which  the  court  itself  apparently  made  — 
to  wit,  that  the  constitution  did  not  expressly  authorize  the  people 
of  Denver  to  regulate  the  tax  rate  for  county  purposes.  Even 
upon  this  assumption  it  seems  clear  that  the  argument  of  the  court 
was  unsound.  But  turning  to  the  constitutional  provision  in 
question  we  find  there  a  pertinent  declaration  which  was  com- 
pletely ignored  by  the  court.  In  the  fourth  section  of  the  amend- 
ment it  was  provided  that  "the  council  shall  have  power  to  fix  the 
rate  of  taxation  on  property  each  year  for  city  and  county  pur- 
poses." Surely  if  the  council  was  empowered  to  fix  the  rate  for 
county  purposes,  the  people  were  empowered  to  fix  a  tax  rate  limit 
for  such  purposes  through  the  medium  of  their  charter.  The 
court  must  have  read  this  provision,  if  at  all,  in  such  manner  as  to 
make  it  confer  the  power  merely  to  fix  the  rate  of  taxation  "for 
purposes  of  the  city  and  county  corporation,"  which  corporation 
the  court,  by  an  almost  ludicrous  course  of  reasoning,  construed  in 
effect  to  be  merely  the  city  corporation.  It  is  submitted  that 
even  if  the  force  of  this  reasoning  be  granted,  the  provision  in 


HOME  RULE  IN  COLORADO  521 

question  could  with  far  greater  logic  have  been  construed  to  confer 
the  power  to  fix  the  tax  rate  "for  city  and  for  county  purposes." 
If  it  had  been  so  construed  without  altering  the  conclusion  of  the 
court,  the  doctrine  of  the  Hilts  case  would  have  been  not  only 
close  to  that  of  the  Johnson  case  but  also  precisely  identical  with 
it.  It  would  have  been  to  declare  void  a  provision  of  the  amend- 
ment itself  on  the  ground  that  the  grant  of  power  made  by  the 
people  of  the  state  was  hi  this  respect  beyond  their  competence. 
This  declaration  was  not  actually  made;  but  there  can  be  little 
doubt  that  under  the  view  expressed  it  would  have  been  made 
had  the  court  deemed  it  necessary  to  sustain  the  judgment  of 
invalidity  that  was  rendered  against  the  power  sought  to  be 
exercised  by  the  consolidated  city  and  county. 

As  the  law  stood  hi  Colorado  under  the  adjudications  of  the 
court  in  the  Mauff  and  the  Hilts  cases  it  could  only  be  said  that  no 
part  of  the  home  rule  provisions  of  the  constitution  had  in  fact 
been  held  to  be  inoperative  by  the  application  of  the  doctrine 
that  it  was  beyond  the  competence  of  the  people  of  the  state 
through  the  medium  of  a  constitutional  amendment,  to  confer 
certain  home  rule  powers.  On  the  other  hand,  it  seems  unques- 
tionable that  in  the  Mauff  and  the  Hilts  cases  the  court  still  enter- 
tained the  view  that  the  provision  hi  question,  hi  order  that  its 
own  validity  might  be  sustained,  had  to  be  so  construed  as  not  to 
give  occasion  for  the  application  of  this  doctrine.  In  other  words, 
the  doctrine  itself  was  not  completely  repudiated.  In  spite  of  the 
vigorous  opinion  uttered  in  the  Cassiday  case,  and  in  spite  of  the 
judgment  of  validity  that  was  passed  upon  the  clause  conferring 
certain  powers  in  respect  to  officers  who  were  to  perform  county 
functions,  the  foundational  thought  of  both  the  Mauff  and  the 
Hilts  cases  was  that  if  the  amendment  was  to  be  construed  as  delegat- 
ing power  to  regulate  anything  but  matters  of  purely  local  concern, 
the  amendment  itself  could  not  stand.  It  was  not  simply  declared 
that  the  amendment  had  conferrred  no  other  power.  On  the 
contrary,  it  was  unqualifiedly  asserted  that  no  other  power  was 
conferred  because  no  other  power  could  be  conferred.  It  is  diffi- 
cult to  understand  what  specific  principle  of  our  constitutional 


522     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

law  might  be  invoked  to  sustain  such  a  rule,  unless  the  court 
intended  once  more  to  rest  for  frail  and  shadowy  support  upon 
the  wholly  inapplicable  guarantee  of  a  republican  form  of  gov- 
ernment. 

One  or  two  commentaries  may  here  be  made.  In  the  first 
place,  it  is  pertinent  to  inquire :  why  did  the  Colorado  court 
resort  to  a  doctrine  of  law  which  has  apparently  never  been  thought 
of  in  connection  with  the  home  rule  provisions  of  any  other  state 
constitution  which  we  have  considered?  This  question  is  easily 
answered.  In  every  other  provision  there  was  an  express  clause 
which  could  be  construed  to  require  that  home  rule  cities  should 
at  least  be  subject  to  the  control  of  state  laws  regulating  matters 
of  general  as  distinguished  from  local  concern.  In  the  Colorado 
amendment  there  was  no  such  clause.  The  only  clear  implication 
in  respect  to  the  applicableness  of  general  laws  was  that  which 
was  found  in  the  somewhat  poorly  phrased  declaration  that  the 
charter  of  Denver  should  designate  the  officers  who  should  "  per- 
form the  acts  and  duties  required  of  county  officers  to  be  done  by 
the  constitution  or  by  the  general  law."  This  declaration  mani- 
festly referred  solely  to  those  general  laws  that  related  to  the  duties 
of  county  officers  and  not  broadly  to  those  statutes  which  might  be 
regarded  as  regulating  matters  of  general  or  state  concern.  By 
what  specific  clause  of  the  amendment,  therefore,  could  it  be  held 
that  the  provisions  of  a  home  rule  charter  in  Colorado  were,  never- 
theless, in  so  far  as  they  related  to  matters  of  general  concern, 
subject  to  the  supersedence  of  state  laws?  In  the  dilemma  of 
finding  no  such  clause  the  Colorado  court  might  indeed  have 
declared  somewhat  arbitrarily  that  the  constitutional  grant  of  the 
power  to  frame  and  adopt  a  charter  did  not  include  the  authority 
to  regulate  any  matter  of  state  concern  in  a  manner  contrary  to 
the  general  laws  of  the  state.  This  would  have  been  merely  to 
supplement  the  work  of  the  people  of  the  state  by  reading  into 
the  home  rule  provision  of  the  constitution  a  limitation  that  was 
not  expressed  in  its  terms.  It  would  have  been  to  " construe" 
the  term  " charter"  to  suit  the  court's  own  idea  of  what  the  con- 
stitution should  have  provided.  Though  by  and  large  such  exercise 


HOME  RULE  IN  COLORADO 


523 


of  competence  by  the  judiciary  may  be  regarded  as  utterly  repre- 
hensible, there  is  no  question  that  in  this  instance  it  would  have 
been  preferable  to  the  assertion  of  the  strange  and  vague  doctrine 
which  was  in  fact  proclaimed. 

In  the  second  place,  it  is  to  be  noted  that  the  home  rule  charters 
of  Colorado  —  and  especially  the  charter  of  Denver  —  contained 
numerous  provisions  which  in  plain  point  of  fact  regulated  matters 
that  have  been  regarded  in  many  branches  of  the  law  of  municipal 
corporations  as  matters  of  state  as  distinguished  from  local  concern. 
A  logical  and  consistent  application  of  the  doctrine  laid  down  in  the 
Mauff  and  Hilts  cases  would  have  obligated  the  court  to  hold  that 
these  provisions  were  utterly  void  as  being  wholly  beyond  the 
competence  of  the  city.  As  has  already  been  indicated  at  an 
earlier  point  hi  our  study,  a  grant  of  home  rule  powers  which 
should  be  construed  as  limiting  the  city  to  the  regulation  merely 
of  those  matters  which  are  regarded  as  strictly  local  in  character 
would  be  little  short  of  ridiculous.  Under  such  circumstances 
the  home  rule  city,  even  in  the  absence  of  any  governing  state 
law  upon  the  subject,  would  not  be  competent  to  regulate  any 
matter  whatever  relating  to  police,  excise,  health,  education, 
elections,  and  perhaps  also  streets.  One  and  all  of  these  matters 
have  in  numerous  cases,  involving  issues  of  widely  varying  purport, 
been  held  to  be  primarily  matters  of  state  rather  than  of  local 
concern.  Unless,  therefore,  the  Colorado  court  was  prepared  to 
give  a  new  and  much  broader  definition  to  the  term  "local  concern," 
it  is  manifest  that  under  the  doctrine  which  asserted  that  the  home 
rule  provision  of  the  constitution  could  stand  only  if  it  were  con- 
strued to  establish  a  system  of  municipal  control  over  matters 
that  were  strictly  of  local  concern,  large  parts  of  the  several  home 
rule  charters  of  Colorado  would  have  to  be  declared  invalid.  This 
very  obvious  result  of  the  doctrine  in  question  seems  not  to  have 
occurred  to  the  court. 

However,  in  the  latest  pronouncement  of  the  court  upon  this 
subject  the  doctrine  of  the  Mauff  and  the  Hilts  cases  seems  to  have 
been  largely,  if  not  wholly,  abandoned.  In  1912  the  home  rule 
provision  of  the  Colorado  constitution  was  amended  in  certain 


524     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

important  particulars.1  Among  other  things,  complete  power  was 
conferred  upon  cities  in  respect  to  municipal  elections,  this  provi- 
sion having  been  drawn  patently  with  the  object  in  view  of  destroy- 
ing the  effect  of  the  court's  decision  in  the  Mauff  case.  In  the 
People  v.  Prevost2  it  was  contended  that  the  Mauff  case  had 
expressly  declared  that  the  control  of  elections  was  not  a  matter 
of  local  or  municipal  concern  and  that  power  in  respect  to  this 
matter  could  not  in  consequence  be  conferred  upon  a  city.  An- 
swering this  contention  the  court  held  that  the  Mauff  case  had 
been  written  before  the  adoption  of  the  amendment  of  1912  and 
that  by  that  adoption  the  people  of  the  state  had  "declared  in 
terms  that  municipal  elections  were  local  and  municipal  matters, 
upon  which  the  people  of  municipalities  had  the  power  to  legislate." 
If  matters  pertaining  to  municipal  elections  were  not  matters  of 
local  concern  "  before  the  amendment  they  are  so  now,"  for  it  was 
plain  that  the  people  of  the  state  had  deliberately  made  them  so. 

It  does  not  appear  to  have  entered  the  mind  of  the  court  that 
this  view  was  flatly  in  contradiction  of  that  expressed  in  the  Mauff 
case,  which  case  was  not  in  terms  overruled.  It  is  nevertheless 
incontrovertible  that  the  underlying  principle  of  the  Mauff  case 
was  that  the  constitution  could  not  be  construed  as  having  con- 
ferred upon  the  city  any  power  to  regulate  matters  pertaining  to 
elections.  If  by  the  home  rule  provision  it  had  been  undertaken 
to  free  the  people  of  the  city  from  the  control  of  the  state  in  any 
matter  of  state  concern,  the  provision  itself  could  not  have  been 
upheld.  Thus  it  was  declared,  and  this  declaration  admits  of 
only  one  construction. 

In  the  Prevost  case,  however,  the  court  went  on  to  assert  that 
the  contention  to  the  effect  that  the  home  rule  amendment  was 
subversive  of  the  state  government  and  repugnant  to  the  constitu- 
tion of  the  United  States  was  not  well  taken.  "  We  presume,"  said 
the  court,  "that  this  is  a  last  mention  of  that  idea  that  has  been 
advanced  by  those  who  have  desired  to  overthrow  Article  XX  of 
the  constitution,  ever  since  that  Article  was  adopted,  which  idea 
has  vexed  the  courts  not  only  of  this  state  but  of  many  others,  to 

1  Infra,  552.  2  55  Col.  199  (1913)  ;  infra,  557. 


HOME  RULE  IN  COLORADO  525 

wit,  that  the  government  proposed  by  the  home  rule  amendment 
is  not  republican  in  form.  We  are  glad  to  say  that  at  last  that 
question  has  been  fully  settled  and  we  trust  forever  so  far  as  the 
courts  are  concerned."  As  authoritatively  settling  this  question 
the  well-known  case  of  Luther  v.  Borden  l  was  cited,  as  well  as  the 
recent  case  of  Pacific  States  Telephone  &  Telegraph  Co.  v.  Oregon,2 
where  the  Supreme  Court  refused  to  apply  the  guarantee  of  a  repub- 
lican form  of  government  to  defeat  the  state  institution  of  the  initia- 
tive and  referendum.  Both  of  these  cases  laid  down  the  principle 
that  this  guarantee  of  the  federal  constitution  must  be  enforced  if 
at  all  by  Congress  and  not  by  the  courts.  No  judicial  question 
could  arise  out  of  it. 

With  due  respect  for  the  opinion  expressed  in  the  Prevost  case, 
and  with  due  understanding  of  the  court's  laudable  aspiration  for 
company,  it  should  nevertheless  be  remarked  that  Colorado  is  in 
fact  the  only  state  in  which  the  question  as  to  whether  a  constitu- 
tional scheme  of  home  rule  violates  the  guarantee  of  a  republican 
form  of  government  appears  to  have  vexed  the  courts  at  all. 
Moreover,  if  the  decision  of  the  Colorado  court  in  the  Mauff  and 
the  Hilts  cases  did  not  rest  unmistakably  upon  this  doctrine,  how- 
ever absurd  its  application  was,  it  is  simply  impossible  to  under- 
stand from  the  opinions  given  what  rule  of  law  the  court  intended 
to  apply. 

Reviewing  the  cases  upon  this  subject  as  a  whole,  and  consider- 
ing the  nebulous  and  sophistical  reasoning  as  well  as  the  irrecon- 
cilable utterances  of  the  opinions  rendered  therein,  one  would  be 
tempted  to  conclude,  except  for  the  profound  importance  of  the 
general  subject  under  review,  that  the  cases  were  scarcely  worthy 
of  detailed  and  critical  analysis.  After  all,  perhaps  the  princi- 
pal point  of  importance  is  that  the  Prevost  case,  however  impossi- 
ble it  may  be  to  harmonize  it  with  opinions  that  were  expressed 
as  late  as  the  year  1912,  is  the  last  word  of  the  Colorado  court 
upon  this  subject.  As  such  it  may  be  taken  to  mean  that  for  the 
time  being  at  least  the  doctrine  which  asserts  the  incompetence 
of  the  people  of  a  state  to  confer  power  upon  cities  to  regulate 

1  7  Howard  1.     1849.  2  223  U.  S.  118.     1911. 


526     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

within  their  jurisdiction  even  matters  of  state  concern  is  no  longer 
a  doctrine  that  may  be  invoked  to  defeat  any  measure  of  the 
constitutional  grant  of  home  rule  powers  or  to  defeat  any  com- 
petence of  a  city  under  such  grant. 

Further  Complications  arising  out  of  the  Consolidation  of  City  and 
County  Governments  in  Denver 

In  the  famous  Johnson  case  it  was  not  decided  that  the  consol- 
idation of  the  city  and  county  of  Denver  into  a  single  corporation 
was  itself  void,  but  merely  that  all  of  the  county  officers  required 
by  the  constitution  or  the  general  laws  of  the  state  should  be  elected 
in  and  constitute  officers  of  the  consolidated  corporation.  In  addi- 
tion to  the  question  that  was  raised  in  this  case  certain  other  com- 
plications in  respect  to  the  merger  of  the  city  and  county  govern- 
ments grew  out  of  the  provisions  of  the  amendment  relating  to  this 
matter.  Thus  it  was  provided  that  the  merger  should  become 
effective  immediately  upon  the  proclamation  by  the  governor 
declaring  the  adoption  of  the  home  rule  amendment.  This  was 
unlike  the  provision  of  the  Missouri  constitution  for  a  similar 
consolidation  in  St.  Louis,  which  was  to  take  place  only  when  the 
charter  for  the  consolidated  government  should  have  been  framed 
and  adopted.1  The  details  in  regard  to  the  organization  of  the 
government  of  Denver  during  the  interim  preceding  the  adoption 
of  a  charter  were  sought  to  be  regulated  by  the  constitutional 
amendment  itself. 

As  has  already  been  mentioned,  the  government  of  the  city  of 
Denver  in  1902  was  in  considerable  part  in  the  hands  of  two  com- 
missions the  members  of  which  were  appointed  by  the  governor 
of  the  state.  In  1903  the  term  of  office  of  members  of  the  fire 
and  police  board  expired,  and  the  governor  attempted  to  appoint 
their  successors.  In  the  case  of  People  ex  rel.  Parish  v.  Adams2 
it  was  held  that  section  three  of  the  amendment  expressly  provided 
that  "the  terms  of  office  of  all  officers  of  the  city  of  Denver"  should 
upon  the  issuance  of  the  governor's  proclamation  terminate,  and 

1  Supra,  118,  120.  *  31  Col.  476.     1903. 


HOME  RULE  IN  COLORADO 


527 


that  the  " boards"  of  the  city  government,  among  other  enume- 
rated officials,  should  immediately  become  "  officers  of  the  city 
and  county  of  Denver."  The  court  regarded  this  language  as 
being  so  clear  and  imperative  as  to  leave  no  room  for  construc- 
tion. The  members  of  fire  and  police  boards  were  upon  the 
adoption  of  the  amendment  no  longer  appointees  of  the  governor. 
They  held  their  office,  on  the  contrary,  direct  from  the  constitu- 
tional amendment  itself,  and  this  amendment  further  declared 
that  they  should  continue  in  office  until  such  time  as  their  suc- 
cessors, as  provided  in  the  charter  to  be  adopted,  were  duly  elected 
and  had  qualified.  "  The  language  of  section  4,"  said  the  court,  "  by 
which  the  charter  of  the  old  city  was  continued  in  force  does  not 
prolong  the  life  of  this  removal  clause"  —  referring  to  the  clause  of 
the  law  which  vested  power  of  removal  in  the  governor —  "for  it  is 
not  only  inconsistent  with  the  right  of  defendants  to  hold  until  their 
successors  are  elected,  but  it  is  inapplicable  to  the  condition  con- 
fronting the  governor,  since  the  power  of  removal  therein  delegated 
accompanies  only  appointments  made  by  the  governor  himself." 

It  was  provided  in  section  one  of  the  home  rule  amendment  that 
the  city  and  county  of  Denver  should  be  possessed  of  all  property, 
real  and  personal,  formerly  owned  by  the  county  of  Arapahoe  out 
of  which  the  new  corporation  was  created,  and  that  it  should  like- 
wise succeed  to  the  liabilities  and  assume  all  the  indebtedness  of  the 
said  county.  The  same  legislature  which  submitted  this  amend- 
ment to  the  people  of  the  state  passed  an  act  for  the  creation  of  two 
new  counties  out  of  the  portion  of  the  old  county  of  Arapahoe  that 
should  remain  after  the  establishment  of  the  city  and  county  of 
Denver.  In  this  act  provision  was  made  for  the  settlement  of  the 
claims  and  demands  which  the  two  new  counties  might  have 
against  the  old  county.  In  1903  this  act  was  amended  so  as  to 
provide  for  a  complete  adjustment  of  the  division  of  property  and 
of  claims  as  among  the  three  new  corporations  which  were  created 
upon  the  territory  formerly  occupied  by  the  one  county. 

In  the  case  of  the  City  and  County  of  Denver  v.  Adams  County  l 
it  was  contended  that  the  amendment  itself,  so  far  at  least  as  the 

1  33  Col.  1.     1904. 


528     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

consolidated  corporation  of  Denver  was  concerned,  made  a  com- 
plete adjustment  of  the  rights  and  equities  involved  in  the  change 
of  boundaries.  Under  a  strict  construction  of  the  terms  of  the 
amendment  this  would  seem  to  have  been  a  reasonable  contention ; 
but  the  court  held  that  the  contemporaneous  construction  which 
the  legislature  evidently  placed  upon  the  amendment  by  the  enact- 
ment of  the  statute  of  1901  showed  that  it  had  not  been  intended 
that  the  amendment  should  settle  and  completely  adjust  the 
respective  property  rights  and  liabilities  that  grew  out  of  the  sub- 
division of  Arapahoe  county  into  the  three  new  political  entities. 
It  was  declared  that  while  this  legislative  construction  was  not 
absolutely  binding  on  the  court,  yet  there  was  nothing  in  the 
amendment  that  was  absolutely  inconsistent  with  such  interpreta- 
tion. The  practical  difficulties  which  arose  out  of  the  situation 
created  by  the  constitutional  amendment  and  which  the  legisla- 
ture attempted  to  meet  by  the  adjusting  statute  were  thus  described 
by  the  court : 

Old  Arapahoe  county  was  subdivided  into  three  new  bodies  politic. 
All  of  the  property  owned  or  possessed  by  original  Arapahoe  county  was 
given  to  the  new  city  and  county  of  Denver.  This  property  was  acquired 
from  taxes  levied  upon  all  the  property  of  the  old  county.  To  the  revenue 
thus  derived,  and  so  used,  the  territory  which  was  set  off  to  the  county 
of  Adams  contributed  its  portion,  as  did  the  territory  which  was  consti- 
tuted into  the  county  of  South  Arapahoe.  The  constitutional  amendment 
made  no  specific  provision  for  the  payment  by  the  new  city  and  county 
of  Denver  to  the  county  of  Adams  or  to  the  county  of  South  Arapahoe 
for  their  proportionate  interest  in  this  county  property,  but  provision 
was  made  for  payment  by  the  new  city  and  county  of  Denver  of  all  the 
obligations  and  liabilities  of  the  county  of  Arapahoe,  and  to  its  rights 
these  newly  created  counties  succeeded.  When,  therefore,  that  portion 
of  old  Arapahoe  county,  exclusive  of  the  city  and  county  of  Denver,  was 
subdivided  into  the  two  counties,  it  was  entirely  competent  for  the  general 
assembly  to  provide  that  the  successor  of  all  the  property  of  Arapahoe 
county,  viz.,  the  new  city  and  county  of  Denver,  should  pay  to  each  of 
the  new  counties,  the  other  constitutent  elements  of  the  original  county, 
a  just  proportion  of  the  value  of  that  property  which  their  citizens  and 
taxpayers  helped  to  buy.  That  is  all  that  has  been  done  in  this  case. 
There  is  nothing  in  the  constitutional  amendment  opposed  to  this  view, 
and  the  separate  acts  of  the  general  assembly  expressly  authorize  it. 


HOME  RULE  IN  COLORADO  529 

In  the  case  of  Denver  v.  Iliff  1  it  was  held  that  the  city  and 
county  of  Denver  was  by  the  amendment  specifically  made  suc- 
cessor to  the  old  city  of  Denver  and  that  a  suit  previously  instituted 
against  the  former  city  corporation  might  be  continued  against 
the  new  city  and  county  corporation.  This  was  the  only  point 
determined  by  this  case  that  is  material  to  our  inquiry  here ;  and 
this,  it  may  be  noted,  was  merely  to  apply  the  well-known  rule 
governing  the  disposition  of  liabilities  upon  the  dissolution  of  a 
municipal  corporation  and  the  substitution  of  a  successor. 

Again  in  Denver  v.  Bottom  2  the  question  was  raised  as  to  the 
liability  of  the  consolidated  corporation  for  a  claim  asserted  by  an 
individual  against  the  former  county  of  Arapahoe,  which  claim, 
it  was  contended,  had  been  transferred  by  the  constitutional 
amendment  to  the  new  city  and  county  of  Denver.  Applying 
what  was  evidently  the  doctrine  of  the  Johnson  case,  the  court  held 
that  although  there  existed  only  a  single  city  and  county  corpora- 
tion, nevertheless  the  municipal  government  of  that  corporation 
was  distinct  from  its  county  government.  The  new  county,  it 
was  said,  was  one  of  the  governmental  subdivisions  of  the  state 
and  its  board  of  county  commissioners  was  legally  existing  when 
this  action  was  brought.  A  claim,  therefore,  which  was  in  fact  a 
claim  against  the  county,  could  be  enforced  only  in  the  manner 
prescribed  by  law  for  the  enforcement  of  claims  against  any 
other  county  government.  The  claimant  was  compelled  to 
follow  the  general  law  which  required  that  all  claims  against  a 
county  should  be  audited  and  allowed  by  the  board  of  county 
commissioners  before  an  action  upon  such  claim  might  be  main- 
tained in  any  court.  In  this  case  the  claimant  had  not  complied 
with  the  statutory  requirement  in  this  regard.  In  consequence 
his  pleading  was  held  to  be  fatally  defective.  In  the  face  of  the 
express  requirement  of  the  amendment  to  the  effect  that  the  new 
consolidated  corporation  should  succeed  to  all  of  the  liabilities  of 
the  dissolved  county  of  Arapahoe,  it  is  not  easy  to  follow  the  line 
of  reasoning  upon  which  the  decision  of  the  court  in  this  case 
turned.  It  must  be  remembered,  however,  that  this  so-called 

1  38  Col.  357.     1906.  2  44  Col.  308.     1908. 


530     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

county  government  within  the  corporation  of  the  city  and  county 
of  Denver  was  an  entity  created  by  judicial  construction  and  not 
by  the  letter  of  the  constitution.  It  is  scarcely  surprising,  there- 
fore, to  note  the  thin  refinements  of  logic  which  the  court  em- 
ployed hi  its  effort  to  square  the  implications  of  the  doctrine  of  the 
Johnson  case  with  the  express  declaration  of  the  amendment  itself. 

In  Hallett  v.  Denver  J  it  was  held  that  during  the  interim  between 
the  adoption  of  article  twenty  and  the  adoption  of  the  charter  of  the 
city  and  county  of  Denver  the  consolidated  corporation  was 
vested  with  all  the  authority  previously  reposed  in  the  city  of 
Denver  except  to  such  extent  as  that  authority  was  rendered 
plainly  void  by  reason  of  some  express  provision  of  the  article. 
The  power,  therefore,  to  create  sidewalk  districts  and  to  assess  the 
cost  of  the  sidewalks  constructed  therein  upon  the  owners  of  abut- 
ting property  was  a  power  to  which  the  city  and  county  succeeded. 
This  resulted  from  the  first  declaration  of  section  four  to  the  effect 
that  the  charter  of  the  city  of  Denver  should  "for  the  time  being 
only,  and  as  far  as  applicable,  be  the  charter  of  the  new  city  and 
county." 

Again  in  Aichele  v.  Denver  2  it  was  declared  that  the  incumbent 
who  held  the  office  of  county  clerk  during  the  interim  between  the 
adoption  of  the  amendment  and  the  adoption  of  the  charter  was  not 
entitled  to  the  salary  of  city  clerk  as  well  as  to  his  salary  as  county 
clerk.  This  ruling  was  based  upon  the  requirement  of  section  three 
of  the  amendment  by  which  the  clerk  of  the  county  was  declared  to 
be  the  ad  interim  clerk  of  the  consolidated  city  and  county.  The 
clear  implication,  of  course,  was  that  the  office  of  city  clerk  as  such 
was  abolished  and  that  the  functions  performed  by  that  officer 
were  transferred  to  the  county  clerk  who  was  made  clerk  of  the 
entire  consolidated  corporation. 

So  also  in  Elder  v.  Denver,3  upon  precisely  the  same  course  of 
reasoning,  it  was  held  that  the  city  treasurer,  who  was  by  the 
express  declaration  of  the  amendment  made  ad  interim  treasurer 
of  the  consolidated  corporation,  was  not  entitled  to  the  salary 
of  both  the  county  treasurer  and  the  city  treasurer.  Of  somewhat 

1  46  Col.  487.  1909.       2  52  Col.  183.  1911.      8  53  Col.  496.  1912. 


HOME  RULE  IN  COLORADO  531 

similar  purport  was  the  decision  in  Denver  v.  Meyer  1  involving 
the  question  of  the  salary  of  the  superintendent  of  schools  of  the 
consolidated  corporation. 

In  any  candid  view  it  must  be  admitted  that  the  f ramers  of  the 
Colorado  home  rule  amendment  entered  upon  a  somewhat  ambi- 
tious undertaking  in  attempting  to  combine  the  grant  of  power 
to  frame  a  charter  with  a  detailed  scheme  for  the  immediate  con- 
solidation of  city  and  county  governments  in  Denver.  It  can 
scarcely  be  said  that  they  acquitted  themselves  of  their  task  with 
great  distinction.  The  constitutional  amendment  as  adopted  was 
unquestionably  pregnant  with  ambiguities  —  ambiguities  to  which 
tjie  courts  contributed  little  in  the  way  of  resolution  and  much  in 
the  way  of  complication. 

In  spite  of  the  general  common-sense  arguments  that  may  be 
advanced  with  irresistible  force  for  the  consolidation  of  city  and 
county  governments  in  the  case  of  sizable  cities,  this  proposal 
inevitably  presents  embarrassing  difficulties  in  any  state  in  which 
the  county  has  been  traditionally  a  time-honored  unit  of  govern- 
ment. It  is  very  nearly  absurd  to  essay  to  regulate  the  details  of 
such  a  merger  by  the  terms  of  a  constitutional  provision.  In 
spite  of  the  elaborateness  of  the  constitutional  amendment  in 
Colorado,  the  court  was  compelled  to  admit  the  binding  effect  of 
supplementary  legislation  and  was  likewise  compelled  to  interpret 
numerous  clauses  of  the  amendment  that  were  by  no  means  free 
from  uncertainty. 

Has  the  Home  Rule  City  the  Power  to  erect  and  maintain 
an  Auditorium? 

The  case  of  Denver  v.  Hallett,2  involving  the  question  of  the 
competence  of  Denver  to  issue  bonds  for  the  construction  of  a 
municipal  auditorium  to  be  used  for  sundry  public  and  quasi- 
public  purposes,  was  pending  in  court  at  the  time  of  the  decision 
of  the  "  county  offices  election  cases." 3  It  had  been  argued  before 
the  supreme  court  but  had  not  been  decided  at  the  time  of  Senator 

1  54  Col.  96.     1912.  a  34  Col.  393.     1905.  8  Supra,  509. 


532     THE  LAW  AND   THE  PRACTICE   OF  HOME   RULE 

Patterson's  famous  onslaught  upon,  the  court  which  led  to  the 
"constructive  contempt"  proceedings  already  mentioned.1  In 
addition  to  criticizing  the  decisions  rendered  in  the  election  cases, 
the  Senator  had  predicted  that  this  case  would  be  decided  adversely 
to  the  claim  of  the  city  as  to  its  competence.  It  is  naturally  im- 
possible to  ascertain  what  arguments  of  expediency  may  have  been 
impressed  upon  the  judicial  mind  by  the  furious  warfare  of  words 
that  ensued  —  a  warfare  that  was  waged  upon  the  very  brink  of 
public  scandal.  Suffice  it  to  say  that  while  the  specifically  pro- 
posed issue  of  bonds,  which  were  to  be  payable  at  the  option 
of  the  city  fifteen  years  after  date,  was  held  void  under  the  affirma- 
tive vote  of  the  people  for  an  issue  of  bonds  "payable  in  equal 
annual  instalments,"  the  court  nevertheless  sustained  the  authority 
of  the  city  to  undertake  the  enterprise  in  question. 

One  of  the  principal  contentions  made  in  the  Hallett  case  was 
that  the  first  section  of  the  home  rule  amendment  enumerated 
certain  powers  which  the  consolidated  city  and  county  might 
exercise  and  that  such  enumeration  was  exclusive.  To  the  court, 
however,  as  to  any  one  of  normal  intelligence,  it  seemed  to  be  very 
clear  that  this  brief  enumeration  was  "simply  the  expression  of  a 
few  of  the  more  prominent  powers  which  municipal  corporations 
are  frequently  granted."  The  intention  of  the  amendment  was 
to  enlarge  the  powers  of  cities  "beyond  those  usually  granted  by 
the  legislature."  In  fact,  "it  was  intended  to  confer  not  only  the 
powers  specially  mentioned,  but  to  bestow  upon  the  people  of 
Denver  every  power  possessed  by  the  legislature  in  the  making  of  a 
charter  for  Denver."  2 

Now  surely  the  court  would  have  admitted  that  the  legislature 
could  have  regulated  within  a  city,  by  the  provisions  of  a 
legislative  charter,  matters  of  strictly  state  concern.  Yet  the 
Johnson  case,  which  was  decided  in  the  same  year,  had  vehemently 
declared  that  not  even  the  people  of  the  state  could  by  a  provision 
of  their  fundamental  law  confer  upon  the  people  of  Denver  the 
power  to  regulate,  through  their  local  charter,  any  state  or  county 
affair.  Is  it  unjust  to  surmise  that  this  wide  discrepancy  of 

1  Supra,  512.  8  Italics  are  interpolated. 


HOME   RULE  IN  COLORADO  533 

doctrine  —  a  discrepancy  that  swung  from  the  extreme  of  illiberality 
to  the  extreme  of  liberality  — had  some  explanation  that  was  not 
recorded  in  the  books? 

At  any  rate,  upon  this  sweeping  premise  of  the  city's  competence 
the  gravamen  of  the  case  came  to  this :  could  the  legislature 
"have  conferred  upon  the  city  of  Denver  power  to  purchase  a 
site,  erect  an  auditorium  thereon,  and  issue  bonds  to  discharge 
the  indebtedness  ? "  After  pointing  to  the  fact  that  Denver 
had  for  years  exercised  many  powers  that  were  not  indispensable 
to  the  existence  of  the  municipality,1  and  after  reviewing  a  number 
of  cases,  many  of  which  had  involved  the  application  of  the  doc- 
trine of  no  taxation  for  a  private  purpose,  the  opinion  concluded : 

It  will  not  be  disputed  that  the  public  buildings  in  Denver  are  not 
now  suited  to  the  demands  of  the  public.  They  are  poorly  ventilated, 
and  crowded,  and  a  wise  and  economical  administration  of  public  affairs 
will  require  that  an  auditorium,  if  erected,  be  so  constructed  as  to  pro- 
vide accommodations  for  a  portion  of  the  public  officers  and  public 
records.  Moreover,  as  the  power  is  now  vested  exclusively  in  the  people 
themselves  of  making,  revising,  altering  or  amending  their  charter,  and 
as  they  have  the  power  to  petition  for  any  measure  or  charter  amendment 
or  for  a  charter  convention,  and  may  have  referred  to  them,  upon  peti- 
tion, any  ordinance  passed  by  the  council,  or  may  have  by  petition  ordi- 
nances submitted  to  the  qualified  electors,  and  as  other  matters  must  be 
submitted  to  them,  it  would  seem  to  be  within  their  power  to  provide  a 
place  where  matters  of  municipal  policy  and  expediency  may  be  proposed, 
considered  and  acted  upon.  We  have  cited  authorities  holding  that  school 
districts  have  authority  to  provide  a  public  place  designed  to  accommodate 
the  schools  and  the  inhabitants  of  the  district,  for  the  purpose  of  examina- 
tions and  exhibitions,  or  such  other  things  as  are  proper  and  customary 
in  connection  with  district  schools.  Without  considering  the  question  as 
to  what  power  should  provide  the  place,  the  power  exists ;  and  it  would 
seem  to  be  entirely  proper  for  the  city  to  own  a  place  where  the  public 
can  witness  the  exercises  of  commencement  day  of  the  various  high 
schools  of  the  city.  Such  a  place  does  not  now  exist  in  Denver,  and  never 
has  existed.  At  no  time  in  the  history  of  Denver  have  one-half  of  the 

1  Such  as  the  power  "to  appropriate  funds  for  the  entertainment  of  visitors 
and  for  the  expenses  of  funerals,  power  to  take  an  enumeration  of  the  inhabitants, 
to  foster  and  encourage  manufactories,  for  laying  out,  and  ornamenting  grounds 
for  a  cemetery  and  for  the  sale  of  lots  therein,  and  to  support  or  own  a  public 
library." 


534  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

persons  desiring  to  do  so  been  able  to  witness  the  commencement  exer- 
cises of  our  high  schools,  and  no  good  reason  is  apparent  why  the  city 
should  not  provide  a  suitable  place  for  the  accommodation  of  the  public. 

If  Cincinnati  may  build  a  railroad  connecting  it  with  a  city  in  another 
state;  if  Philadelphia  may  appropriate  public  money  for  the  entertain- 
ment of  visitors;  if  Brooklyn  may  enjoy  a  public  bath;  if  New  York 
may  build  a  bridge  over  water  not  owned  by  it,  to  connect  it  with  another 
city ;  if  Knoxville  may  appropriate  money  to  aid  a  college  located  out- 
side its  limits;  if  the  municipalities  of  Nebraska,  Tennessee  and  Penn- 
sylvania may  appropriate  money  to  exhibit  their  resources ;  if  towns  in 
Massachusetts  may  erect  memorial  halls,  if  Vermont  towns  may  build 
halls  for  school  exhibitions ;  if  New  England  towns  may  build  town  halls 
for  the  accommodation  of  their  citizens,  under  constitutional  provisions 
limiting  the  power  of  levying  taxes  to  "city  purposes,"  to  "county  pur- 
poses," to  "public  purposes,"  or  to  "corporate  purposes,"  as  the  case  may 
be,  there  is  no  apparent  reason  why  the  taxpayers  of  Denver  may  not* 
under  a  constitutional  provision  limiting  the  power  to  assess  and  collect 
taxes  to  the  "purposes  of  such  corporation,"  by  vote  order  the  erection 
of  an  auditorium  for  public  purposes,  even  though  it  be  incidentally  used 
for  conventions  and  national  associations. 

As  power  to  erect  an  auditorium  is  not  granted  by  the  twentieth 
article,  the  provisions  of  that  article  relating  to  the  issuance  of  bonds  to 
carry  out  the  powers  and  purposes  enumerated  in  section  1  of  the  article, 
however  they  may  be  construed,  have  no  application  to  the  case  at  bar. 
Bonds  for  the  building  of  an  auditorium  must  be  issued  under  the  limita- 
tions of  section  8  of  article  XI  of  the  constitution,  and  the  question,  if 
again  submitted,  should  be  drawn  with  reference  to  that  article  and  section. 

Our  conclusions,  therefore,  are  : 

1.  That  the  bonds  proposed  are  not  responsive  to  the  question  sub- 
mitted. 

2.  That  the  question  submitted  not  being  in  compliance  with  section  8 
of  article  XI  of  the  constitution,  the  bonds  proposed  would  be  illegal, 
and  therefore  nothing  can  be  done  under  the  present  charter  provision. 

3.  That  it  is  within  the  power  of  the  city  and  county  of  Denver  to 
provide  by  charter  for  the  erection  of  an  auditorium  and  to  purchase  a 
site  therefor. 

The  court  did  not  make  clear  what  rule  of  constitutional  law  was 
being  construed  and  applied  to  the  determination  of  the  competence 
of  the  city ;  but  manifestly  the  only  pertinent  rule  was  that  which 
asserts  that  taxes  may  not  be  levied  for  other  than  a  public  pur- 
pose. The  only  question  here  was  this :  granting  the  authority 


HOME  RULE  IN  COLORADO  535 

of  the  city  to  provide  in  a  home  rule  charter  for  any  matter  of 
local  public  concern,  was  the  erection  of  an  auditorium  a  matter 
of  public  concern  ?  Reduced  to  this  formulation,  the  issue  of  the 
case  was  not  strictly  speaking  in  any  wise  an  issue  pertaining  to 
the  competence  of  a  home  rule  city.  It  was  an  issue  which  might 
just  as  well  have  arisen  under  a  statutory  grant  of  authority  to 
erect  an  auditorium.  It  turned  merely  upon  the  application  of  a 
general  doctrine  of  our  constitutional  law.1 

It  may  be  mentioned  in  conclusion  that  the  corporation  of 
Denver  subsequently  submitted  the  question  of  the  issuance  of 
bonds  for  this  purpose  hi  compliance  with  the  requirements  of 
section  eight  of  article  eleven  of  the  constitution  and  that  the 
auditorium  was  erected. 


What  are  the  City's  Financial  Powers  and  to  what  Extent 
are  they  subject  to  the  Control  of  State  Laws  ? 

Regulations  imposed  upon  the  sale  of  intoxicating  liquors  consti- 
tute everywhere  and  at  all  times  a  perennial  source  of  controversy 
before  the  courts.  In  1902  the  legislature  of  Colorado  enacted  a 
statute  requiring  a  state  license  of  all  persons  who  engaged  in 
this  business.  Among  numerous  grounds  upon  which  the  court 
was  asked  to  hold  this  act  invalid,  it  was  contended  that  so  far  as 
it  applied  to  Denver  it  was  in  violation  of  the  home  rule  amend- 
ment. Denver  had  not  at  this  time  adopted  its  own  charter,  but 
for  the  most  part  the  opinion  expressed  by  the  court  upon  this 
point  would  have  been  equally  applicable  to  the  provisions  of  a 
charter  of  local  adoption.  It  was  held  that  section  five  of  the 
amendment  put  the  matter  in  dispute  beyond  question,  for  it 
was  there  declared  that  "no  such  charter,  amendment  or  meas- 
ure shall  diminish  the  tax  rate  for  state  purposes  fixed  by  act 
of  the  general  assembly,  or  interfere  in  any  wise  with  the  col- 
lection of  state  taxes."  One  of  the  objects  of  the  act  under  re- 
view was  to  provide  a  revenue  for  state  expenses.  This  being 

1  McBain,  "Taxation  for  a  Private  Purpose,"  in  Political  Science  Quarterly,  29: 
185.  See  also  supra,  363  ;  infra,  567  ff. 


536     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

so,  it  was  manifest  that  nothing  in  the  local  charter  did  or  could 
interfere  with  the  operation  of  the  act.  In  other  words,  while 
no  opinion  was  expressed  as  to  the  scope  of  the  home  rule  city's 
powers  to  determine  the  sources  of  its  own  revenue,  it  was  asserted 
—  and  the  constitution  clearly  left  no  doubt  upon  the  point  — 
that  the  competence  of  the  state  to  fix  its  own  financial  policy 
could  not  be  affected  by  the  provisions  of  locally  made  charters. 
So  far  as  the  law  was  concerned  this  was  an  adequate  protection 
of  the  interests  of  the  state  as  such;  but  so  far  as  practice  was 
concerned  it  is  manifest  that  the  state  might  find  itself  handi- 
capped in  any  attempt  to  establish  even  a  fairly  scientific  revenue 
policy  drawn  along  the  lines  of  a  separation  of  the  sources  of 
central  and  local  revenues.1 

In  Londoner  v.  Denver2  a  contention,  inter  alia,  was  made 
that  the  city  could  not  exercise  the  power  of  eminent  domain  for 
the  purpose  of  acquiring  lands  for  park  purposes  except  upon  the 
approval  of  a  bond  issue  for  such  purpose  by  the  "taxpaying 
electors"  as  required  in  section  one  of  the  home  rule  amendment 
for  a  bond  issue  for  the  acquisition  of  certain  enumerated  public 
utilities.  Following  the  doctrine  of  Denver  v.  Hallett 3  the  court 
held  that  this  section  did  not  purport  to  be  a  complete  enumera- 
tion of  the  powers  of  the  consolidated  corporation.  There  was  no 
constitutional  prohibition  upon  the  competence  of  the  city  and 
county,  "on  whom  was  conferred  every  power  possessed  by  the 
legislature  in  the  making  of  a  charter  for  Denver,"  to  exercise  the 
power  of  eminent  domain.4  It  was  "elementary"  that  it  was  a 
"  legislative  function  to  determine  what  powers  shall  be  granted, 
what  withheld,  and  what  restrictions  shall  be  imposed  on  the  exer- 
cises of  powers  granted."  The  competence  of  the  city  in  framing 
and  adopting  a  charter  was  measured  only  by  the  competence  of 
the  legislature  in  enacting  a  legislative  charter.  Here  again  was 
announced  this  extremely  liberal  rule  —  a  rule  which  was  so  in- 
congruously juxtaposed  not  only  to  the  early  doctrine  that  operated 
to  suspend  a  part  of  the  amendment  itself  but  also  to  certain  later 

1  Supra,  132,  176,  278,  435.  *  52  Col.  15.     1911. 

•  34  Col.  393  (1905)  ;  supra,  631.  «  Supra,  175,  336,  430,  471. 


HOME  RULE  IN  COLORADO  537 

cases,  which,  as  we  shall  see,  without  hesitation  sustained  the  home 
rule  amendment  only  to  the  extent  that  it  conferred  power  to 
regulate  strictly  local  affairs.1  Has  any  one  ever  heard  of  a  provision 
of  a  municipal  charter  of  legislative  origin  which  was  held  to  be  in- 
valid upon  the  ground  that  it  regulated  or  controlled  a  matter  of 
state  as  distinguished  from  local  concern? 

The  two  cases  discussed  in  this  section  appear  to  be  the  only 
cases  that  have  arisen  in  the  Colorado  jurisdiction  involving 
questions  of  the  financial  competence  of  cities  under  home  rule 
charters.  The  first  of  these  did  not  resolve  an  issue  of  absolute 
conflict  between  state  law  and  charter  provision,  but  merely  in- 
dicated that  the  constitution  had  established  something  in  the 
nature  of  a  concurrence  of  power  as  between  the  city  and  the 
state  in  the  matter  of  the  sources  of  their  respective  revenues. 
The  case  last  mentioned  was  settled  by  the  application  of  a  canon 
of  interpretation  which  is  certainly  not  wholly  reconcilable  with 
other  views  expressed  by  the  court  and  which  may  at  some  future 
time  arise  to  confound  still  further  the  already  confused  and 
illogical  utterances  of  the  Colorado  court. 

In  spite  of  the  small  amount  of  controversy  before  the  courts 
of  this  state  on  the  subject  of  the  financial  competence  of  home  rule 
cities,  a  constitutional  amendment  was  adopted  in  1912  which 
conferred  specific  power  in  respect  to  the  assessment  of  property 
for  purposes  of  municipal  taxation  and  the  levy  and  collection  of 
municipal  taxes  and  special  assessments.2  The  books  do  not 
disclose  that  this  amendment  was  prompted  by  any  adverse 
decision  of  the  supreme  court  upon  this  subject,  although  it  may 
have  been  suggested  by  doubts  or  complications  that  had  developed 
in  practice.  However  this  may  be,  it  is  interesting  to  record  that 
in  November,  1913  the  charter  of  Pueblo  was  amended  so  as  to 
introduce  to  a  limited  extent  the  principle  of  the  single  tax. 
Whether  the  constitutional  amendment  of  1912  can  be  construed 
to  confer  the  power  to  establish  such  a  system  of  taxation  remains 
for  judicial  determination.  The  power  is  certainly  not  conferred 
in  unmistakable  terms. 

1  Infra,  542,  544.  *  Infra,  553. 


538     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Does  a  State  Law  supersede  a  Charter  Provision  regulating  the 
Manner  in  which  a  Home  Rule  City  shall  enter  into  Contracts? 

In  Keefe  v.  People  1  the  court  was  urged  to  declare  void,  at  least 
in  its  application  to  the  city  and  county  of  Denver,  a  general  law 
of  the  state  which  fixed  an  eight-hour  day  as  the  legal  day  of  labor 
on  all  public  work,  whether  for  the  state  itself  or  any  of  its  political 
subdivisions,  and  whether  carried  on  by  direct  employment  or  by 
contract.  In  the  opinion  that  was  rendered  the  court  pointed  to 
the  obvious  fact  that  a  law  of  this  kind  could  not  be  sustained 
under  the  police  power  but  only  "upon  the  ground  that  the  state 
in  its  proprietary  capacity"  —  whatever  that  might  import  — 
might  "properly  prescribe  for  itself  and  its  auxiliary  arms  of  gov- 
ernment the  terms  and  conditions  on  which  work  of  a  public  nature 
might  be  done."  Following  the  decision  of  Atkin  v.  Kansas,2 
where  the  United  States  Supreme  Court  upheld  a  law  of  somewhat 
similar  purport  as  applied  to  cities  under  legislative  charters, 
the  Colorado  court  sustained  the  validity  of  the  law  in  its  applica- 
tion to  the  cities  of  that  state.  And  when  it  was  urged  to  declare 
that  although  such  a  law  was  valid  as  applied  to  cities  under 
legislative  charters,  it  was  nevertheless  not  binding  upon  cities 
operating  under  home  rule  charters,  the  court  declared : 

But  the  municipality  of  Denver,  though  created  by  a  constitutional 
amendment  by  a  direct  vote  of  the  people,  and  having  the  power  to 
frame  its  own  charter,  is  just  as  much  an  agency  of  the  state  for  the  pur- 
pose of  government  as  if  it  was  organized  under  a  general  law  passed 
by  the  general  assembly.  The  mode  of  its  creation  does  not  change  the 
nature  of  its  relation  to  the  state.  Like  cities  and  towns  organized  under 
the  general  statutes,  it  is  still  a  part  of  the  state  government.  It  is  as 
much  amenable  to  state  control  in  all  matters  of  a  public,  as  distinguished 
from  matters  of  a  local  character,  as  are  other  municipalities.  The 
state  still  has  the  supreme  power  to  enact  general  laws  declaring  what 
shall  be  its  public  policy,  and  it  can  make  them  applicable  to  the  city  of 
Denver,  as  well  as  to  all  other  cities  of  the  state.  This  act,  in  effect, 
declares  that  it  is  the  public  policy  of  the  state  not  to  permit  any  officer 
or  agent  of  the  state,  or  its  municipalities,  or  any  contractor  thereof ,  to 
employ  any  working-man  in  the  prosecution  of  public  work  for  more  than 

1  37  Col.  317.     1906.  *  191  U.  S.  207  (1903) ;  supra,  26. 


HOME  RULE  IN  COLORADO  539 

eight  hours  a  day,  and  for  a  violation  of  the  statute  a  penalty  is  provided. 
What  the  public  policy  of  the  state  is,  rests  with  its  legislative  depart- 
ment. The  work  of  building  a  sanitary  sewer  by  a  city,  in  a  sense,  is 
local,  in  that  it  affects,  primarily,  its  own  citizens ;  but  it  is  directly  con- 
nected with  the  public  health,  and  is  a  matter  of  concern  and  great  im- 
portance to  the  people  of  the  entire  state.  The  state  has  never  relin- 
quished to  the  new  city  and  county  of  Denver,  and  never  can  surrender 
to  it,  the  power  to  enact  laws  to  punish  crimes  and  misdemeanors,  and 
the  operation  of  such  laws  embraces  all  of  the  people  of  the  state,  whether 
living  in  municipalities  or  counties  created  directly  by  the  constitution, 
or  organized  under  general  laws.  Such  legislation  would  not  be  valid  if 
it  expressly  exempted  the  city  and  county  of  Denver  from  its  operation. 

One  or  two  points  of  importance  may  here  be  noted.  In  the 
first  place,  although  the  law  in  question  was  not  overtly  in  conflict 
with  any  charter  provision,  yet  since  the  charter  contained  pro- 
visions in  respect  to  the  making  of  contracts  which,  in  the  absence 
of  the  law,  would  have  been  entirely  valid  without  obedience  to 
the  requirement  imposed  by  the  statute,  there  was  in  fact  a  con- 
flict between  the  two.  This  was  not  referred  to  by  the  court. 

In  the  second  place,  the  court's  attempt  to  escape  the  contention 
that  this  was  a  matter  wholly  of  local  concern  was  manifestly 
disingenuous.  The  Supreme  Court  of  the  United  States  had  indeed 
held  in  Atkin  v.  Kansas  that  such  a  law  did  not  deprive  a  municipal 
corporation  of  the  federal  right  of  freedom  of  contract ; 1  but  here 
was  a  wholly  dissimilar  question.  The  rule  applied  by  the  Supreme 
Court  was  that  a  municipal  corporation  could  not  invoke  the  pro- 
tection of  the  federal  guarantee  of  due  process  of  law  in  respect 
to  its  liberty  of  contract  because  of  the  relation  of  complete  subordi- 
nation in  which  such  a  corporation  stood  toward  the  legislature  of 
the  state.  But  in  Colorado  this  relation  of  subordination  had  been 
largely  destroyed  by  the  constitutional  amendment  granting  home 
rule  powers.  It  had  certainly,  even  in  the  opinion  of  the  Colorado 
court,  been  destroyed  as  to  matters  of  local  concern.  Was  it 
not  patent,  therefore,  that  the  question  here  before  the  court  did 
not  in  any  respect  involve  the  federal  right  of  freedom  of  contract 
as  applied  to  municipal  corporations,  but  only  the  Colorado  right 

1  For  discussion  of  this  point  see  supra,  26,  406. 


540    THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  home  rule  ?  The  former  issue  had  been  settled  by  the  highest 
court  of  the  land  —  settled  by  the  application  of  the  doctrine  of 
legislative  supremacy  over  municipal  corporations  so  far  as  the 
United  States  constitution  was  concerned.  The  supreme  court 
of  the  state  was  morally,  if  not  legally,  bound  to  accept  that 
decision.  But  this  had  nothing  whatever  to  do  with  the  construc- 
tion of  the  home  rule  provisions  of  the  state  constitution.  This 
was  a  matter  upon  which  the  United  States  Supreme  Court  had 
never  passed.  It  was  not  a  federal  question  at  all.  The  question 
was  simply  whether  the  conditions  under  which  a  home  rule 
city  shall  enter  into  contracts  for  local  public  improvements  should 
be  regarded  as  a  matter  of  state  or  of  municipal  concern.  Pro- 
pounded thus,  there  could  be  only  one  answer  to  the  issue  pre- 
sented by  the  case.  If  there  was  any  such  thing  as  a  matter  of 
strictly  local  concern,  it  was  sheer  nonsense  to  declare  —  barring 
unusual  circumstances  —  that  "the  work  of  building  a  sanitary 
sewer"  in  a  specific  city  was  of  "great  importance  to  the  people 
of  the  entire  state,"  or  to  rest  the  supremacy  of  the  state  law  over 
a  charter  provision  regulating  the  making  of  contracts  upon  the 
ground  that  the  law  carried  a  penal  sanction  and  that  the  state 
had  "never  relinquished  .  .  .  the  power  to  punish  crimes  and 
misdemeanors."  To  express  such  views  was  merely  to  trifle 
with  the  solemn  guarantee  of  home  rule  powers  that  was  written 
into  the  fundamental  law  of  the  state. 

Finally,  it  may  be  appropriately  noted  at  this  point  that  this  is 
one  of  the  few  cases  of  Colorado  record  in  which  the  applicable- 
ness  of  a  general  law  of  the  state  to  a  home  rule  city  has  been 
drawn  into  question.  In  that  state  it  has  apparently  been  ac- 
cepted without  question  that  a  law  applicable  to  cities  of  the 
first  or  the  second  class  did  not  apply  to  any  city  under  a  home  rule 
charter  but  only  to  cities  which  have  voluntarily  remained  under 
legislative  control.  This  has  doubtless  been  due  in  part  to  the 
fact  that  the  home  rule  amendment  contained  no  specific  declara- 
tion to  the  effect  that  cities  under  home  rule  charters  should  be 
subject  to  the  general  laws  of  the  state  —  the  kind  of  declaration 
that  would  raise  even  in  the  minds  of  the  layman  speculations  as 


HOME  RULE  IN  COLORADO  541 

to  its  significance.  But  the  absence  of  adjudications  upon  this 
point  seems  to  have  been  due  in  larger  part,  strange  as  it  may  seem 
in  the  light  of  recorded  history,  to  an  attitude  of  deference  on  the 
part  of  the  Colorado  legislature  toward  the  grant  of  home  rule 
powers  as  written  into  the  amendment  of  1902. 

Has  the  City  the  Power  to  regulate  Matters  pertaining  to  Elections 
and  to  what  Extent  is  it  Subject  to  the  Control  of  State  Laws 
pertaining  to  such  Matters? 

The  first  home  rule  charter  of  Denver  conferred  upon  the  county 
court  power  to  control  municipal  election  contests.  In  the  case 
of  Williams  v.  People x  the  validity  of  this  provision  was  drawn  into 
question  before  the  court.  The  provision  was  held  void  by  the 
application  of  the  general  nebulous  doctrine  of  the  Johnson  case 
to  the  effect  that  the  state  could  not  set  apart  any  portion  of  its 
territory  and  vest  in  the  citizens  thereof  the  power  to  legislate  upon 
matters  other  than  those  of  strictly  municipal  concern.2  When 
the  court  was  asked  to  reconsider  the  doctrine  of  that  case  in  the 
light  of  wholly  contrary  opinions  expressed  in  certain  Missouri 
and  California  cases,  it  was  asserted  that  if  it  were  "important 
or  necessary"  it  would  not  be  difficult  to  demonstrate  that  home 
rule  as  established  in  Colorado  was  fundamentally  different  from 
that  created  by  the  constitutional  provisions  of  these  other  states, 
and  that  even  if  this  were  not  so,  the  Johnson  case  laid  down  the 
law  of  the  Colorado  constitution  upon  this  subject. 

It  is  perhaps  just  as  well  that  the  court  did  not  attempt  to  show 
wherein  lay  the  fundamental  difference  between  the  Colorado 
amendment  and  the  home  rule  provisions  of  these  other  states; 
for  while  there  were  unquestionably  certain  differences  there  was 
in  fact  little  if  any  fundamental  difference  in  respect  to  the  scope 
of  home  rule  powers  conferred.  So  far  as  this  matter  was  con- 
cerned it  involved  in  each  of  the  states  mentioned  merely  a  con- 
sideration of  what  powers  might  properly  be  included  within 
the  grant  of  authority  to  frame  a  municipal  charter.  On  the  other 

1  38  Col.  497.     1906.  *  Supra,  509. 


542     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

hand,  so  far  as  questions  of  conflict  between  state  laws  and  charter 
provisions  were  concerned,  it  might  indeed  have  been  said  that 
the  provisions  of  the  several  constitutions  were  not  identical. 

However  that  may  be,  the  court  held  hi  the  Williams  case  that 
"a  judicial  investigation "  to  determine  the  validity  of  an  election 
was  not  a  municipal  function  and  that  a  municipality  was  not 
competent  to  confer  by  the  terms  of  a  home  rule  charter  jurisdic- 
tion upon  a  state  court  to  make  such  an  investigation.  Moreover, 
that  the  charter  provisions  in  question  obviously  related  to  a  mat- 
ter of  governmental  and  state  concern  was  evidenced  by  certain 
specific  provisions  of  the  constitution.  Thus  that  instrument 
declared  that  a  county  court  should  have  "such  other  civil  or 
criminal  jurisdiction  as  may  be  conferred  by  law;"  l  and  that  the 
legislature  should  "pass  laws  to  secure  the  purity  of  elections  and 
guard  against  abuses  of  the  elective  franchise;"2  and  further, 
that  the  legislature  should  "designate  the  courts  and  judges  by 
whom  the  several  classes  of  election  contests  not  herein  provided 
for  shall  be  tried,  and  regulate  the  manner  of  trial  and  all  matters 
incident  thereto."  3 

In  this  last-noted  provision  of  the  constitution  it  may  be  that 
the  court  might  have  found  fairly  reasonable  justification  for  as- 
serting that  the  matter  of  election  contests  could  be  regulated  only 
by  state  law,  although  it  may  be  mentioned  also  that  the  home 
rule  amendment  expressly  declared  for  the  repeal  of  all  constitu- 
tional provisions  with  which  it  might  be  found  to  be  in  conflict. 
However,  if  this  declaration  of  the  constitution  had  been  the  sole 
ground  upon  which  the  judgment  of  the  court  was  reached,  it 
would  have  been  manifestly  unnecessary  to  reaffirm  and  apply 
the  doctrine  of  the  Johnson  case  or  to  assert,  as  was  asserted,  that 
the  trial  of  a  municipal  election  contest  and  the  grant  of  jurisdic- 
tion over  such  trial  to  a  court  which  formed  a  part  of  the  general 
judical  organization  of  the  state  were  matters  wholly  of  state 
concern.  It  would  have  been  necessary  only  to  declare  that  re- 
gardless of  whether  election  contests  were  or  were  not  matters 
of  state  concern,  a  specific  provision  of  the  constitution  required 

1  Art.  VI,  sec.  23.  »  Art.  7,  sec.  11.  »  Art.  7,  sec.  12. 


HOME  RULE  IN  COLORADO  543 

that  such  matters  should  be  regulated  by  general  laws  enacted  by 
the  legislature.  On  the  whole,  it  seems  reasonable  to  conclude 
that  this  decision  of  the  Colorado  court  was  entirely  out  of  har- 
mony with  most,  though  not  all,  of  the  cases  in  other  jurisdictions 
involving  the  competence  of  the  city  to  control  matters  pertaining 
to  elections  or  to  confer  jurisdiction  upon  a  state  court.1 

Now  in  plain  point  of  fact  the  charter  of  Denver,  which  was 
the  only  home  rule  charter  in  the  state  at  the  time  this  decision 
was  rendered,  contained  numerous  provisions  regulating  matters 
pertaining  to  elections.2  Under  the  broad  doctrine  of  the  Wil- 
liams case  it  was  at  least  doubtful  whether  any  of  these  provisions 
were  valid.  It  seems,  nevertheless,  that  elections  in  Denver  were  for 
some  years  thereafter  conducted  under  the  charter  requirements. 

In  1911,  as  has  been  noted,  the  rule  of  the  Johnson  case,  which 
was  here  relied  upon,  was  overturned  by  the  Cassiday  case.  It 
might  have  been  supposed  that  the  doctrine  of  Williams  v. 
People  had  collapsed  with  that  of  the  case  which  had  furnished  its 
chief  support.  But  this  was  not  so;  for  in  1912  decision  was 
rendered  hi  Mauff  v.  People,3  to  which  brief  reference  has  already 
been  made.  It  seems  appropriate  at  this  point  to  describe  in  more 
detail  the  nature  of  the  controversy  that  was  presented  in  this  case. 

Among  other  provisions  relating  to  elections  the  charter  of 
Denver  established  an  election  commission  and  prescribed  its 
powers  and  duties.  In  191 1  a  state  law  was  enacted  which  required 
that  judges  of  elections  should  be  selected  in  every  county  from 
lists  certified  by  the  local  chairmen  of  the  two  major  party  com- 
mittees. This  requirement  was  hi  open  conflict  with  the  provisions 
on  this  subject  contained  in  the  Denver  charter.  In  the  Mauff 
case  the  court  was  asked  to  declare  that  this  law  was  inapplicable 
to  the  city  of  Denver  as  being  hi  conflict  with  the  valid  provisions  of 
its  home  rule  charter.  In  answer  to  this  request  the  opinion  recited  : 

(1)  If  by  article  20  of  the  Constitution  the  city  and  county  of  Denver 
is  freed  from  the  Constitution  and  general  laws  of  the  state  concerning 
elections,  then  by  the  charter  the  people  of  that  political  body  may  proceed 

1  Supra,  141,  193,  259,  267,  425,  473 ;  infra,  583,  635. 

'  Sees.  10,  20-23,  166-184.  »  52  Col.  562  (1912) ;   supra,  516. 


544     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

to  fix  the  qualifications  of  electors  therein,  provide  a  complete  system  for 
the  conduct  of  elections,  declare  what  shall  constitute  an  offense  against 
the  laws  so  enacted,  prescribe  punishment  therefor,  say  how  and  in  what 
courts  election  contests  shall  be  waged  and  in  short,  upon  the  entire  sub- 
ject of  elections,  which  it  requires  no  argument  to  show,  in  the  very  nature 
of  things,  is  of  more  than  local  concern,  may  act  independently  of  the 
provisions  of  the  state  Constitution  and  the  general  laws  relating  thereto. 
A  construction  of  this  article  that  leads  to  a  result  so  absurd  and  utterly 
impossible  is  palpably  wrong  and  should  not  have  the  sanction  or  ap- 
proval of  the  courts.  That  the  entire  state  is  interested  in  having  the 
qualifications  of  electors,  of  offenses  against  election  laws  and  punishments 
therefor,  methods  of  conducting  election  contests,  provisions  for  the  pres- 
ervation of  the  purity  of  the  ballot,  fixed  and  defined  throughout  the 
state  by  uniform  laws,  and  that  the  sovereign  power  of  the  state  alone 
can  do  this,  seems  so  plain  as  to  amount  practically  to  a  demonstration. 

The  state  Constitution  declares  that  the  General  Assembly  shall  pass 
laws  to  guard  against  abuses  of  the  elective  franchise  and  to  secure  the 
purity  of  elections,  and  statutes  have  been  enacted  in  compliance  with 
this  mandate.  It  is  not  possible  that  in  the  city  and  county  of  Denver 
this  provision  of  the  Constitution,  and  the  wise,  wholesome  and  beneficent 
laws  passed  pursuant  thereto,  have  been  swept  aside,  that  they  are  no 
longer  in  force  there,  and  that  the  people  of  that  locality  are  in  this  respect 
freed  therefrom  and  have  ceased  to  be  subject  thereto.  Those  laws  and 
the  above  referred  to  provision  of  the  Constitution,  with  others  thereof, 
concerning  elections  and  the  exercise  of  the  elective  franchise,  were  in 
force  in  that  territory  prior  to  the  adoption  of  article  20,  and  unless  we 
find  something  therein  setting  them  aside,  they  are  still  so  in  force. 

Having  quoted  from  the  opinions  expressed  in  the  Sours  and 
the  Cassiday  cases  the  court  went  on  to  declare : 

It  is  manifest,  from  these  excerpts  from  former  opinions  of  this  court, 
that  no  part  of  the  Constitution  of  the  state  has  been  set  aside  by  article 
20,  unless  directly  so,  or  by  necessary  implication,  through  some  one  or 
more  provisions  of  that  article.  Where  the  Constitution  and  general 
laws  of  the  state  have  not  been,  either  by  direct  provision  or  necessary 
implication,  set  aside,  they  are  as  much  in  force  in  the  city  and  county 
of  Denver  as  they  are  in  other  portions  of  the  state.  The  purpose  of 
article  20  was  to  give  to  the  people  of  the  city  and  county  of  Denver 
exclusive  control  in  matters  of  local  concern  only.  The  people  of  the  city 
and  county  of  Denver  have  no  power  whatever  to  legislate  by  their  char- 
ter upon  matters  of  state  and  county  governmental  import  and  character. 
The  fact  that  the  authority  given  by  article  20  to  the  people  of  the  city 
and  county  of  Denver  to  legislate  was  confined  and  limited  solely  to  local 


HOME  RULE  IN  COLORADO  545 

matters  was  the  precise  thing  that  made  it  possible  for  the  courts  to  up- 
hold and  enforce  it.  If  by  article  20  it  had  been  undertaken  to  free  the 
people  of  the  city  and  county  of  Denver  from  the  state  Constitution, 
from  statute  law,  and  from  the  authority  of  the  General  Assembly,  re- 
specting matters  other  than  those  purely  of  local  concern,  that  article 
could  not  have  been  upheld. 

(2)  Keeping  in  mind  the  fact  that  the  state  Constitution  is  a  limita- 
tion upon  the  powers  of  the  General  Assembly,  and  that  but  for  inhibi- 
tions found  therein  its  legislative  power  is  plenary,  let  us  examine  article 
20  and  see  whether  by  its  express  terms,  or  by  implication,  necessary  or 
otherwise,  a  limit  of  any  sort  is  placed  upon  the  General  Assembly  respect- 
ing the  enactment  of  laws  to  govern  and  control  the  conduct  of  elections 
in  the  city  and  county  of  Denver.  We  search  this  article  in  vain  for  a 
single  expression  which  hints  at  or  even  suggests  any  such  limitation. 
There  is  no  provision  in  article  20  by  which,  upon  any  pretext,  either 
directly  or  indirectly,  it  can  be  said  that  it  is  sought  thereby  to  in  any 
respect  change  the  Constitution  of  the  state,  or  the  laws  in  force  under 
it,  upon  the  subject  of  elections,  except  as  hereinafter  pointed  out.  The 
only  special  power  thereby  given  the  city  and  county  of  Denver  upon 
this  subject,  beside  permitting  therein  the  use  at  elections  of  the  auto- 
matic voting  register,  is  to  fix  the  term,  which  includes  the  time  of  elec- 
tion, and  to  designate  the  officers  who,  as  agents,  are  to  perform  in  that 
municipality  state  and  county  governmental  functions.  Except  as  thus 
modified,  the  state  Constitution  and  general  laws  concerning  elections 
remain  in  full  force  and  effect  and  are  as  much  applicable  to  the  city  and 
county  of  Denver  as  to  any  other  section  of  the  state. 

The  contention  is  that  the  exclusive  power  having  been  given  to  the 
citizens  of  the  city  and  county  of  Denver,  by  article  20,  to  amend  their 
charter,  or  to  adopt  a  new  charter,  or  to  adopt  any  measures  as  therein 
provided,  the  power  is  with  the  people  to  provide  for  the  conduct  and 
control  of  elections  as  they  may  see  fit.  By  every  decision  of  this  court, 
from  the  Sours  case,  supra,  down  to  and  including  the  case  of  Hilts  et  al.  v. 
Markey  et  al.,  122  Pac.  394,  decided  February  21,  1912,  which  is  the 
last  expression  upon  this  subject,  it  has  been  held  that  this  power  extends 
to  nothing  except  matters  of  local  concern.  All  elections  are  public  in 
character,  and  are  of  governmental  and  state-wide  importance,  rather 
than  of  local  or  municipal  interest  merely,  and  hence  must  be  under  the  con- 
trol and  regulation  of  the  state  Constitution  and  general  laws.  The 
right  to  vote  comes  from  the  sovereign  authority  of  the  state,  and  that 
right  can  only  be  fully  preserved  and  enforced  by  the  same  authority. 
Every  citizen  of  the  commonwealth  is  interested  in  the  purity  of  elec- 
tions, which  consists  chiefly  in  affording  qualified  electors  an  opportunity 
to  vote  and  have  their  votes  counted,  and  in  preventing  those  not  qualified 


546     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

from  voting.  It  means  protection,  in  the  exercise  of  this  right,  to  those 
entitled  to  have  it.  The  right  of  the  elector  to  be  thus  safeguarded  carries 
with  it  the  corresponding  duty  on  the  part  of  the  state  to  furnish  all 
needed  protection.  It  is  a  matter  of  general  public  concern  that,  at  all 
elections,  such  safeguards  be  afforded.  The  state  at  large  is  interested 
in  the  purity  of  every  election,  municipal  or  otherwise,  and  it  must  be 
apparent  that  it  is  only  through  the  power  of  the  sovereign  state  itself  that 
purity  in  elections  can  be  obtained.  In  determining  what  is  of  local,  and 
what  is  of  state  interest  in  this  connection,  the  right  of  the  elector  to  the 
protection  of  the  state,  which  cannot  be  fairly  doubted,  is  a  potent  factor. 

Attention  has  already  been  called  to  the  fact  that  the  funda- 
mental point  in  the  first  division  of  the  court's  argument  in  this 
case  was  that  the  home  rule  article  of  the  constitution  "could  not 
have  been  upheld"  if  it  had  to  be  construed  as  conferring  upon 
cities  power  in  respect  to  "  matters  other  than  those  purely  of 
local  concern."  In  spite  of  this  the  court,  with  utter  lack  of  logic, 
proceeded  in  the  same  division  of  its  argument  to  make  an  ex- 
amination of  the  article  with  a  view  to  ascertaining  whether  the 
city  of  Denver  had  been  expressly  granted  any  power  over  elec- 
tions which  would  oust  the  operation  of  a  conflicting  state  law 
upon  the  same  subject.  The  court  found  to  its  apparent  gratifi- 
cation and  relief  that  no  such  power  had  been  expressly  conferred. 
However,  in  the  conclusion  of  the  opinion,  where  the  effort  was 
made  to  show  that  this  power  was  not  included  within  the  mere 
grant  of  authority  to  frame  a  charter,  the  court  seemed  to  rest 
once  more  upon  the  point  that  was  registered  in  the  first  part  of 
the  argument.  Elections,  whether  municipal  or  otherwise,  were 
so  much  a  matter  of  general  state  concern  that*  they  "must  be 
under  the  control  and  regulation  of  the  state  constitution  and 
general  laws ;"  for  "it  is  only  through  the  power  of  the  sovereign 
state  itself  that  purity  in  elections  can  be  obtained."  Of  course 
the  court  did  not  intend  to  declare  that  the  power  to  frame  and 
adopt  a  charter  had  been  conferred  by  any  other  than  the  "sover- 
eign state  itself."  Reduced  to  less  high-sounding  terms  these 
expressions  could  have  meant  only  that  the  regulation  of  elec- 
tions was  a  matter  which  could  be  controlled  only  by  the  consti- 
tution itself  or  by  an  agency  of  state-wide  jurisdiction;  to  wit; 


HOME  RULE  IN  COLORADO  547 

the  legislature.  Moreover,  the  implication  was  strongly  given 
that  not  even  the  fundamental  law  of  the  state  could  have  made 
any  other  disposition  of  control  in  respect  to  this  matter. 

The  opinion  handed  down  in  this  case  has  been  presented  and 
discussed  in  some  detail  chiefly  because  it  is  so  completely  out  of 
harmony  with  opinions  expressed  upon  this  subject  in  most  other 
jurisdictions,1  as  well  as  because  it  seems  to  illustrate  the  incapacity 
which  the  supreme  court  of  Colorado  has  shown  in  attempting  to 
apply  logical  and  consistent  rules  of  construction  to  the  somewhat 
complicated  home  rule  provisions  of  the  constitution  of  that  state. 

As  has  already  been  indicated,  the  power  to  regulate  practically 
all  matters  pertaining  to  elections  was,  among  other  powers,  con- 
ferred upon  the  cities  of  Colorado  by  an  amendment  proposed 
by  initiative  petition  and  adopted  in  the  same  year  in  which  the 
opinion  was  handed  down  in  the  Mauff  case.2  In  spite  of  the 
views  that  were  so  unmistakably  expressed  in  this  case  concern- 
ing the  incompetence  of  the  people  to  grant  such  power  by  the 
terms  of  the  constitution,  this  amendment  was  unhesitatingly 
upheld  in  People  v.  Prevost.3 

Has  the  City  the  Power  to  supplement  the  Procedure  laid  down  for 
the  Amendment  of  Home  Rule  Charters  ? 

In  the  case  of  Speer  v.  People  4  one  of  the  contentions  raised  was 
to  the  effect  that  the  provisions  of  the  existing  home  rule  charter 
of  Denver  which  regulated  certain  matters  of  detail  pertaining 
to  the  form  and  filing  of  petitions  for  charter  amendments  were 
void  as  being  beyond  the  competence  of  the  city  to  control.  On 
this  ground  the  city  council,  which  was  opposed  to  the  introduc- 
tion of  the  commission  form  of  government  provided  for  in  certain 
proposed  charter  amendments,  refused  to  call  a  special  elec- 
tion at  which  such  amendments  might  be  submitted  to  the  elec- 
tors. The  court  held  that  the  power  to  amend  the  charter  was 
by  the  constitution  plainly  conferred  upon  the  citizens  of  Denver 

1  Supra,  141,  267,  425 ;  infra,  583,  635.  2  Supra,  523  ;  infra,  553. 

3  55  Col.  199  (1913) ;   supra,  524 ;  infra,  557.  «  52  Col.  325.     1912. 


548     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

and  that  it  was  in  essence  a  legislative  power.  From  all  partici- 
pation in  the  exercise  of  this  power  the  council  was  by  the  clear 
meaning  of  the  constitution  excluded.  By  the  terms  of  the  fifth 
section  of  the  home  rule  amendment  the  council  was  not  even  per- 
mitted to  propose  charter  amendments.  Such  amendments  could 
be  originated  only  by  a  petition  of  voters.  The  function  of  the 
council  in  respect  to  the  submission  of  such  proposed  amendments 
to  the  voters  was  purely  ministerial  in  character.  The  situa- 
tion in  which  the  council  was  placed  in  respect  to  the  submission 
of  any  charter  amendment  was  compared  to  that  of  the  secretary 
of  state  in  the  submission  of  proposed  amendments  to  the  state 
constitution.  It  was  not  the  duty  of  the  secretary  of  state  before 
he  published  the  notice  of  submission  of  a  constitutional  amendment 
to  look  into  the  proposed  measure  with  reference  to  its  validity. 
By  a  parity  of  reasoning  the  city  council  enjoyed  no  power  under 
the  constitution  to  sit  in  judgment  upon  the  validity  of  an  amend- 
ment proposed  by  a  petition  signed  by  the  requisite  number  of 
voters.  On  this  theory  the  court  without  hesitation  issued  a  man- 
damus compelling  the  council  to  submit  the  amendments  proposed. 

In  respect  to  the  specific  contention  that  the  provisions  of  the 
existing  charter  regulating  certain  details  in  respect  to  petitions 
were  void,  the  court  simply  declared  without  argument  or  dis- 
cussion that  since  these  matters  of  detail  were  not  regulated  by 
the  constitution,  they  were  "all  proper  subjects  to  be  regulated 
and  controlled  by  the  charter."  It  was  not  intimated  that  details 
such  as  these,  which  were  in  fact  supplementary  to  the  constitution, 
should  have  been  regulated  by  the  legislature.  Certainly  the 
case  may  be  held  to  have  declared  that,  at  least  in  the  absence  of 
regulation  by  law,  such  matters  were  appropriately  made  the  sub- 
ject of  charter  control. 

In  this  case  the  court  found  it  unnecessary  to  decide  whether 
so  fundamental  a  change  in  the  city  government  as  the  intro- 
duction of  the  commission  form  of  organization  could  be  made 
through  the  medium  of  a  charter  amendment.  The  contention 
was  that  such  an  amendment  was  in  effect  a  new  charter  and  that 
a  new  charter  could  be  adopted  only  after  it  had  been  drafted 


HOME  RULE  IN  COLORADO  549 

and  proposed  by  a  charter  convention.  On  the  theory  that  the 
judicial  branch  of  the  government  could  not  interfere  with  the 
process  of  legislation  while  a  law  was  in  the  making  and  that  the 
citizens  of  Denver  in  amending  their  charter  were  in  fact  a  part 
of  the  legislative  department  of  the  government,  it  was  held  that 
the  court  had  no  power  to  consider  the  validity  of  the  amendment 
until  it  had  been  duly  adopted  and  its  validity  questioned  in  a 
cause  properly  brought  before  the  court. 

The  amendment  establishing  the  commission  form  of  govern- 
ment was  duly  adopted  in  Denver  in  February,  1912.  Immedi- 
ately thereafter  its  validity  was  questioned  before  the  court  in 
the  case  of  People  ex  rel.  Moore  v.  Perkins.1  The  main  point  that 
was  discussed  and  settled  by  the  court  was  that  the  amendment 
was  properly  included  within  the  definition  of  that  term  as  used 
in  the  home  rule  provision  of  the  constitution.  Certain  other 
points  of  hair-splitting  nicety  were  also  disposed  of,  but  they  are 
of  no  material  consequence  to  the  purposes  of  our  study. 

Does  a  State  Law  supersede  a  Charter  Provision  in  Respect  to  the 

Police  Power? 

A  number  of  cases  have  come  before  the  Colorado  courts  involv- 
ing questions  of  the  police  powers  of  home  rule  cities,  but  most 
of  these  have  turned  merely  upon  a  construction  of  the  competence 
of  the  city  as  limited  by  the  fundamental  guarantees  of  due  pro- 
cess of  law  and  the  equal  protection  of  the  laws.  Thus  it  was  held 
that  an  ordinance  of  Denver  which  prohibited  the  opening  of 
barber  shops  on  Sunday  was  a  valid  exercise  of  the  police  power 
of  the  city.2  On  the  other  hand,  although  it  is  difficult  to  appre- 
ciate the  superfinical  distinction,  an  ordinance  prohibiting  the 
sale  of  meats  and  groceries  on  Sunday  3  was  void  upon  the  author- 
ity of  an  earlier  case  which  held  invalid  a  similar  ordinance  applied 
to  the  clothing  business.4 

1  56  Col.  17.    1913. 

J  McClelland  v.  City  of  Denver,  36  Col.  486.     1906. 

3  Mergen  ».  City  and  County  of  Denver,  46  Col.  385.     1909. 

«  Denver  v.  Bach,  26  Col.  530.     1899. 


550     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

So  also  an  ordinance  was  held  void  which  prohibited  the  giving 
away  of  trading  stamps  on  the  ground  that  this  was  an  unjusti- 
fiable exercise  of  the  police  power  and  that  the  ordinance  was  a 
"palpable  invasion  of  the  rights  guaranteed  by  the  federal  and 
state  constitutions." 1  Likewise  an  ordinance  regulating  the 
height  and  distance  back  from  the  street  line  of  bill-boards  was 
declared  void  on  the  ground  that  the  requirements  imposed 
had  no  relation  whatever  to  the  public  health  or  safety.2  Since 
this  ordinance  was  passed  in  1898  and  therefore  before  the  adop- 
tion of  the  first  home  rule  charter  of  Denver,  it  was  in  fact  the 
provisions  of  the  city's  old  legislative  charter  that  were  construed 
by  the  court.  In  any  case,  however,  the  real  question  at  issue  was 
whether  the  liberty  and  property  rights  guaranteed  by  the  federal 
and  state  constitutions  were  invaded. 

Again  the  court  refused  to  sustain  an  ordinance  of  Denver  which 
declared  that  "a  brick-yard  where  bricks  are  burned  within  twelve 
hundred  feet  of  any  residence,  or  public  schoolhouse,  or  park 
belonging  to  the  city  without  permission  of  the  owner  or  occupant 
of  such  residence  or  of  the  city  ...  is  a  nuisance."  3  Such  ordi- 
nance was  held  to  be  unreasonable  and  to  be  a  deprivation  of  prop- 
erty without  due  process  of  law.  So  likewise  within  this  category 
of  inhibited  police  ordinances  was  one  which  prohibited  the  erec- 
tion of  any  store  building  upon  a  lot  fronting  upon  an  ordinary 
street  except  upon  the  written  consent  of  the  owners  of  prop- 
erty in  the  same  block  on  each  side  of  such  street.4  In  this  case 
there  was  no  express  charter  authority  for  the  ordinance  in  ques- 
tion, and  one  of  the  points  decided  was  that  such  an  ordinance 
could  not  be  sustained  under  an  incidental  or  general  grant  of 
police  power  to  the  legislative  authority  of  the  city.  In  other 
words,  the  charter  was  strictly  construed  in  this  respect ;  but  the 
ordinance  was  also  held  invalid  by  the  application  of  the  prin- 
ciple of  due  process  of  law. 

1  Denver  v.  Frueauff,  39  Col.  20.     1906. 

2  Curran  Bill  Posting  &  Distributing  Co.  v.  Denver,  47  Col.  221.    1910. 
8  Denver  v.  Rogers,  46  Col.  479.     1909. 

« Willison  v.  Cooke,  54  Col.  320.    1913. 


HOME  RULE  IN  COLORADO  551 

However  one  may  agree  or  disagree  with  the  rules  laid  down 
by  the  Colorado  supreme  court  in  these  several  cases,  it  is  mani- 
fest that  they  have  no  relation  whatever  to  the  subject  of  home 
rule.  It  is  too  obvious  to  necessitate  expression  that  a  city  under 
a  charter  of  its  own  making  cannot  invade  the  rights  of  liberty 
and  of  property  that  are  guaranteed  to  persons  by  the  provisions 
of  the  federal  constitution. 

The  Denver  charter  of  1904  contained  elaborate  provisions 
controlling  the  matter  of  the  issuance  of  liquor  licenses.1  In  the 
case  of  Slater  v.  Fire  and  Police  Board  of  Denver 2  these  provisions 
were  the  subject  of  judicial  consideration,  but  apparently  no  con- 
tention was  made  that  the  control  of  such  a  matter  as  this  was 
beyond  the  power  of  the  city  and  no  intimation  to  this  effect 
was  given  in  the  opinion  that  was  handed  down.  In  Schwartz  v. 
People,3  however,  it  appears  that  a  state  statute  of  1907  which 
conferred  local  option  upon  municipal  wards  and  precincts  in 
the  matter  of  liquor  licenses  was  without  hesitation  considered 
as  applicable  to  the  city  of  Denver.  It  was  not  even  contended 
that  the  statute  was  void  as  applied  to  Denver,  although  there 
was  certainly  a  conflict  between  the  state  law  and  the  charter 
provisions.  The  latter  did  not  in  any  manner  contemplate  that 
the  people  of  a  ward  or  precinct  of  the  city  should  have  the  author- 
ity to  prevent  the  opening  of  saloons  within  their  jurisdiction. 
The  implication  of  the  case  was  that  the  state  law  upon  this  sub- 
ject took  precedence  over  the  conflicting  provisions  of  the  charter. 

In  Glendinning  v.  the  City  and  County  of  Denver4  the  court 
was  compelled  to  determine  specifically  the  relation  of  superiority 
and  inferiority  between  a  state  police  law  and  a  municipal  police 
ordinance  that  were  found  to  be  in  conflict.  A  statute  prohibited 
the  sale  of  " oleomargarine  made  in  imitation  of  butter."  The 
city  enacted  an  ordinance  which  required  a  license  for  the  sale  of 
"  oleomargarine  made  in  imitation  of  butter."  Said  the  court : 

The  city  requires  a  license  for  doing  the  very  thing  forbidden  by  the 
statute.  All  municipal  ordinances  must  be  in  harmony  with  the  general 

1  Sees.  70-81.  2  43  Col.  225.    1908. 

» 46  Col.  239.    1909.  4  50  Col.  240.    1911. 


552     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

law  of  the  state;  if  they  are  inconsistent  or  repugnant  to  such  general 
law,  they  are  void,  ultra  vires,  and  no  one  can  be  convicted  for  violating 
a  void  ordinance. 

This  case  did  not  turn  upon  any  consideration  of  the  home  rule 
powers  of  the  city.-  It  in  fact  merely  applied  the  well-known 
and  practically  universally  accepted  rule  to  the  effect  that  munic- 
ipal police  ordinances  and  state  police  laws  may  run  concurrently, 
but  that  in  case  of  actual  conflict  the  state  law  takes  precedence. 
In  other  words,  the  case  is  authority  for  the  rule  that  in  the 
exercise  of  police  powers  a  city  under  a  home  rule  charter  is  in  no 
different  position  from  a  city  under  a  legislative  charter.1 

The  Home  Rule  Amendment  of  1912 

As  has  already  been  mentioned,  an  amendment  to  section  six 
of  the  Colorado  home  rule  article  was  proposed  by  initiative  peti- 
tion and  ratified  by  the  electors  at  the  regular  November  elec- 
tions in  1912.  As  thus  amended  this  section  reads  as  follows : 

The  people  of  each  city  or  town  in  this  state,  having  a  population  of 
two  thousand  inhabitants  as  determined  by  the  last  preceding  census 
taken  under  the  authority  of  the  United  States,  the  State  of  Colorado  or 
said  city  or  town,  are  hereby  vested  with,  and  they  shall  always  have, 
power  to  make,  amend,  add  to  or  replace  the  charter  of  said  city  or  town, 
which  shall  be  its  organic  law  and  extend  to  all  its  local  and  municipal 
matters. 

Such  charter  and  the  ordinances  made  pursuant  thereto  in  such  matters 
shall  supersede  within  the  territorial  limits  and  other  jurisdiction  of  said 
city  or  town  any  law  of  the  State  in  conflict  therewith. 

Proposals  for  charter  conventions  shall  be  submitted  by  the  city  coun- 
cil or  board  of  trustees,  or  other  body  in  which  the  legislative  powers  of 
the  city  or  town  shall  then  be  vested,  at  special  elections,  or  at  general 
state  or  municipal  elections,  upon  petitions  filed  by  qualified  electors, 
all  in  reasonable  conformity  with  section  5  of  this  article,  and  all  pro- 
ceedings thereon  or  thereafter  shall  be  in  reasonable  conformity  with 
sections  4  and  5  of  this  article. 

From  and  after  the  certifying  to  and  filing  with  the  Secretary  of  State 
of  a  charter  framed  and  approved  in  reasonable  conformity  with  the  pro- 
visions of  this  article,  such  city  or  town,  and  the  citizens  thereof,  shall 

i  Supra,  138,  176,  256,  322,  403,  467. 


HOME   RULE  IN  COLORADO  553 

have  the  powers  set  out  in  sections  1,  4,  and  5  of  this  article,  and  all 
other  powers  necessary,  requisite  or  proper  for  the  government  and  ad- 
ministration of  its  local  and  municipal  matters,  including  power  to  legis- 
late upon,  provide,  regulate,  conduct  and  control : 

a.  The  creation  and  terms  of  municipal  officers,  agencies  and  employ- 
ment;  the  definition,  regulation  and  alteration  of  the  powers,  duties, 
qualifications  and  terms  of  tenure  of  all  municipal  officers,  agents  and 
employees ; 

6.  The  creation  of  police  courts ;  the  definition  and  regulation  of  the 
jurisdiction,  powers  and  duties  thereof,  and  the  election  or  appointment 
of  police  magistrates  therefor ; 

c.  The  creation  of  municipal  courts ;   the  definition  and  regulation  of 
the  jurisdiction,  powers,  and  duties  thereof,  and  the  election  or  appoint- 
ment of  the  officers  thereof ; 

d.  All  matters  pertaining  to  municipal  elections  in  such  city  or  town 
and  to  electoral  votes  therein  on  measures  submitted  under  the  charter 
or  ordinances  thereof,  including  the  calling  or  notice  and  the  date  of 
such  election  or  vote,  the  registration  of  voters,  nominations,  nomination 
and  election  systems,  judges  and  clerks  of  election,  the  form  of  ballots, 
balloting,   challenging,   canvassing,   certifying    the  result,   securing   the 
purity  of  elections,  guarding  against  abuses  of  the  elective  franchise, 
And  tending  to  make  such  elections  or  electoral  votes  non-partisan  in 
character ; 

e.  The  issuance,  refunding  and  liquidation  of  all  kinds  of  municipal 
obligations,  including  bonds  and  other  obligations  of  park,  water  and  local 
improvement  districts ; 

/.  The  consolidation  and  management  of  park  or  water  districts  in 
such  cities  or  towns  or  within  the  jurisdiction  thereof ;  but  no  such  con- 
solidation shall  be  effective  until  approved  by  the  vote  of  a  majority,  in 
each  district  to  be  consolidated,  of  the  qualified  electors  voting  therein 
upon  the  question; 

g.  The  assessment  of  property  in  such  city  or  town  for  municipal 
taxation  and  the  levy  and  collection  of  taxes  thereon  for  municipal  pur- 
poses and  special  assessments  for  local  improvements ;  such  assessment, 
levy  and  collection  of  taxes  and  special  assessments  to  be  made  by  munic- 
ipal officials  or  by  the  county  or  state  officials  as  may  be  provided  by 
the  charter ; 

h.  The  imposition,  enforcement  and  collection  of  fines  and  penalties 
for  the  violation  of  any  of  the  provisions  of  the  charter,  or  of  any  ordi- 
nance adopted  in  pursuance  of  the  charter. 

It  is  the  intention  of  this  article  to  grant  and  confirm  to  the  people, 
of  all  municipalities,  coming  within  its  provisions  the  full  right  of  self- 
government  in  both  local  and  municipal  matters  and  the  enumeration 


554     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

herein  of  certain  powers  shall  not  be  construed  to  deny  to  such  cities  and 
towns,  and  to  the  people  thereof,  any  right  or  power  essential  or  proper 
to  the  full  exercise  of  such  right. 

The  statutes  of  the  State  of  Colorado,  so  far  as  applicable,  shall  con- 
tinue to  apply  to  such  cities  and  towns,  except  in  so  far  as  superseded  by 
the  charters  of  such  cities  and  towns  or  by  ordinance  passed  pursuant  ta 
such  charters. 

All  provisions  of  the  charters  of  the  City  and  County  of  Denver  and 
the  Cities  of  Pueblo,  Colorado  Springs  and  Grand  Junction,  as  heretofore 
certified  to  and  filed  with  the  Secretary  of  State,  and  of  the  charter  of 
any  other  city  heretofore  approved  by  a  majority  of  those  voting  thereon, 
and  certified  to  and  filed  with  the  Secretary  of  State,  which  provisions 
are  not  in  conflict  with  this  article,  and  all  elections  or  electoral  votes 
heretofore  had  under  and  pursuant  thereto,  are  hereby  ratified,  affirmed 
and  validated  as  of  their  date. 

Any  act  in  violation  of  the  provisions  of  such  charter  or  of  any  ordi- 
nance thereunder  shall  be  criminal  and  punishable  as  such  when  so  pro- 
vided by  any  statute  now  or  hereafter  in  force. 

The  provisions  of  this  section  6  shall  apply  to  the  City  and  County  of 
Denver. 

This  article  shall  be  in  all  respects  self-executing. 

It  is  as  difficult  to  ascertain  what  were  the  motives  that  prompted 
the  writing  of  certain  provisions  of  this  amendment  as  it  is  to 
declare  what  will  be  the  probable  judicial  construction  of  these 
provisions.  In  a  general  way  it  may  perhaps  be  said  that  the  enu- 
meration of  express  powers  as  set  forth  in  this  amendment  was 
due  to  the  doubts  which  were  aroused  by  reason  of  the  opinions 
handed  down  in  the  above-mentioned  Mauff  and  Hilts  cases.1 
For  example,  the  charter  of  Denver  established  and  regulated  a 
municipal  court.2  If  the  supreme  court  had  been  asked  to  pass 
upon  the  validity  of  this  provision  of  the  charter  it  is  quite 
possible  that  matters  pertaining  to  a  municipal  or  police  court 
would  have  been  declared  to  be  matters  of  state  concern. 
Under  the  doctrine  of  the  Mauff  case,  even  in  the  absence  of 
any  conflicting  state  law,  such  provision  would  in  consequence  be 
void. 

The  provisions  of  subdivision  "d"  which  conferred  powers 
in  respect  to  municipal  elections  were  obviously  incorporated 

1  Supra,  516,  517,  543.  2  Sec.  141. 


HOME  RULE  IN  COLORADO 


555 


because  of  the  decision  rendered  in  the  Mauff  case.  This  sub- 
division appears  to  confer  upon  the  home  rule  city  absolute 
power  to  control  every  possible  phase  of  the  subject  of  elections. 
However,  the  city  may  under  this  provision  unquestionably  occupy 
the  field  of  regulation  to  whatever  extent  it  chooses  and  allow  the 
general  election  laws  of  the  state  to  govern  all  matters  not  gov- 
erned by  the  provisions  of  the  charter.  If  conclusion  may  be 
drawn  from  the  provisions  of  their  charters,  that  is  precisely 
what  the  home  rule  cities  of  Colorado  prior  to  the  decision  of  the 
Mauff  case  had  assumed  in  respect  to  their  competence. 

Concerning  the  other  specific  powers  granted  by  this  amend- 
ment the  most  that  can  be  said  is  that  their  incorporation  into 
the  constitution  does  not  appear  to  have  been  prompted  by  reason 
of  any  decisions  of  the  court  directly  in  point.  The  reason  for 
their  existence  could  scarcely  be  given  without  an  intimate  knowl- 
edge of  precise  questions  of  doubt  that  may  have  arisen  in  the 
minds  of  those  who  have  been  interested  in  or  connected  with  the 
operation  of  home  rule  charters  in  the  state.  It  is  worthy  of  note 
that  this  amendment  clearly  implies  that  the  specific  powers 
therein  enumerated  relate  to  matters  of  local  and  municipal 
concern.  It  is  not  to  be  believed  that  the  declared  intention  of 
the  amendment  to  grant  and  confirm  to  the  people  of  home  rule 
cities  "the  full  right  of  self-government"  adds  anything  of  impor- 
tance to  the  rights  of  cities.  It  introduces  the  new  term  "  self- 
government,"  but  it  also  limits  the  exercise  of  such  self-govern- 
ment to  local  and  municipal  matters.  Prior  to  the  adoption  of 
this  amendment  the  court  had  in  effect  declared  that  the  home 
rule  cities  of  Colorado  enjoyed  self-government  in  respect  to 
their  local  and  municipal  affairs. 

The  assertion  that  "the  statutes  of  Colorado,  so  far  as  appli- 
cable, shall  continue  to  apply"  to  home  rule  cities,  except  in  so 
far  as  they  are  superseded  by  the  charters  or  ordinances  of  such 
cities,  must  doubtless  be  taken  to  mean  that  a  state  law,  even 
though  it  related  to  a  matter  of  strictly  local  concern,  would  apply 
to  any  home  rule  city  in  the  absence  of  a  contrary  charter  pro- 
vision. Whether  or  not  this  introduces  a  new  element  of  impor- 


556     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tance  it  is  difficult  to  say.  It  has  never  been  supposed  in  Colorado 
that  a  law  that  was  made  applicable  to  cities  of  the  first  class 
would  apply,  for  example,  to  the  city  of  Denver.  Under  this 
express  provision,  however,  it  would  seem  that  such  a  law  would 
apply  if  the  charter  was  silent  upon  the  subject  of  the  law.  It 
should  be  noted  finally  that  this  amendment  does  not  introduce 
any  express  clause  which  may  be  construed  to  require  that  the 
provisions  of  a  home  rule  charter  must  be  in  harmony  with  the 
laws  of  the  state  upon  any  subject  of  general  as  distinguished  from 
local  concern. 

The  home  rule  situation  in  Colorado  as  determined  by  judicial 
decisions  and  as  affected  by  this  amendment  may  be  doubtless 
summed  up  somewhat  as  follows : 

(1)  The  city  may  through  the  medium  of  its  own  charter  regu- 
late all  matters  of  local  and  municipal  concern. 

(2)  The  city  may  also  exercise  certain  powers  that  are  specifically 
enumerated  in  the  constitution  even  though  they  relate  to  matters 
that  would  otherwise  be  regarded  as  of  state  concern. 

(3)  Wherever  the  charter  is  silent  upon  a  matter  of  either  state 
or  local  concern  a  state  law  regulating  such  matter  will  apply. 

(4)  A  state  law  would  naturally  supersede  a  charter  provision 
upon  any  unenumerated  matter  of  general  as  distinguished  from 
local  concern  for  the  reason  that  such  charter  provision  would, 
even  in  the  absence  of  such  state  law,  be  void  as  being  beyond  the 
competence  of  the  city.     On  the  subject  of  education,  for  example, 
a  state  law  would  control  a  contrary  charter  provision  for  the  simple 
reason  that  the  charter  provision  itself  would  have  no  validity. 
If  this  be  the  true  interpretation  of  the  purport  of  the  home  rule 
provision  of  the  Colorado  constitution,  it  need  only  be  remarked 
that  the  scope  of  home  rule  powers  in  that  state  is  somewhat 
narrower  than  in  certain  other  states  where  the  doctrine  has  been 
laid  down  that  a  city  in  framing  a  charter  for  its  own  government 
is  competent  to  regulate  even  a  matter  that  is  regarded  as  of 
state  rather  than  of  local  concern  to  the  extent  that  such  matter 
is  not  subjected  to  positive  control  by  state  law.     However,  the 


HOME  RULE  IN  COLORADO  557 

possible  narrowness  that  might  result  from  this  general  rule  is  to  a 
large  extent  overcome  by  the  specific  enumeration,  which  includes 
wide  powers  in  respect  to  the  ownership  and  operation  of  public 
utilities,1  as  well  as  extensive  powers  over  police  and  municipal 
courts,  elections,  bond  issues,  and  taxation.  It  is  at  least  implied 
that  the  troublesome  question  of  the  annexation  of  territory  is 
subject  to  control  by  state  law.2 

The  only  case  which  has  arisen  under  the  amendment  of  1912 
is  that  of  People  v.  Prevost,3  where,  as  we  have  already  seen, 
the  provision  conferring  power  hi  respect  to  municipal  elections 
was  sustained.  Subdivision  "g"  relating  to  the  subject  of  munic- 
ipal taxation  appears  also  to  have  been  somewhat  vaguely  at 
issue  in  this  case. 

1  Supra,  499,  » Ibid.  «  55  Col.  199  (1913)  ;  supra,  524,  547. 


CHAPTER  XV 
HOME  RULE  IN  OKLAHOMA  AND  ARIZONA 

EARLY  in  1908  Oklahoma  was  admitted  as  a  state  of  the  Union 
with  a  constitution  which  contained  the  following  provisions 
granting  home  rule  to  cities : 1 

Sec.  3.  (a)  Any  city  containing  a  population  of  more  than  2,000  in- 
habitants may  frame  a  charter  for  its  own  government,  consistent  with 
and  subject  to  the  constitution  and  laws  of  this  State,  by  causing  a  board 
of  freeholders,  composed  of  two  from  each  ward,  who  shall  be  qualified 
electors  of  said  city,  to  be  elected  by  the  qualified  electors  of  said  city,  at 
any  general  or  special  election,  whose  duty  it  shall  be,  within  ninety  days 
after  such  election,  to  prepare  and  propose  a  charter  for  such  city,  which 
shall  be  signed  in  duplicate  by  the  members  of  such  board  or  a  majority 
of  them,  and  returned,  one  copy  of  said  charter  to  the  chief  executive 
officer  of  such  city,  and  the  other  to  the  register  of  deeds  of  the  county  in 
which  said  city  shall  be  situate.  Such  proposed  charter  shall  then  be 
published  in  one  or  more  newspapers  published  and  of  general  circula- 
tion within  said  city,  for  at  least  twenty-one  days,  if  in  a  daily  paper,  or  in 
three  consecutive  issues,  if  in  a  weekly  paper,  and  the  first  publication 
shall  be  made  within  twenty  days  after  the  completion  of  the  charter; 
and  within  thirty  days,  and  not  earlier  than  twenty  days  after  such  pub- 
lication, it  shall  be  submitted  to  the  qualified  electors  of  said  city  at  a 
general  or  special  election,  and  if  a  majority  of  such  qualified  electors 
voting  thereon  shall  ratify  the  same,  it  shall  thereafter  be  submitted  to 
the  governor  for  his  approval,  and  the  governor  shall  approve  the  same 
if  it  shall  not  be  in  conflict  with  the  constitution  and  laws  of  this  State. 
Upon  such  approval,  it  shall  become  the  organic  law  of  such  city  and  super- 
sede any  existing  charter  and  all  amendments  thereof  and  all  ordinances 
inconsistent  with  it.  A  copy  of  such  charter,  certified  by  the  chief  execu- 
tive officer,  and  authenticated  by  the  seal  of  such  city,  setting  forth  the 
submission  of  such  charter  to  the  electors  and  its  ratification  by  them, 
shall,  after  the  approval  of  such  charter  by  the  governor,  be  made  in 
duplicate  and  deposited,  one  in  the  office  of  the  secretary  of  state,  and 

i  Art.  XVIII. 
558 


HOME  RULE  IN  OKLAHOMA  559 

the  other,  after  being  recorded  in  the  office  of  said  register  of  deeds,  shall 
be  deposited  in  the  archives  of  the  city;  and  thereafter  all  courts  shall 
take  judicial  notice  of  said  charter.  The  charter  so  ratified  may  be 
amended  by  proposals  therefor,  submitted  by  the  legislative  authority 
of  the  city  to  the  qualified  electors  thereof  (or  by  petition  as  hereinafter 
provided)  at  a  general  or  special  election,  and  ratified  by  the  governor  as 
herein  provided  for  the  approval  of  the  charter. 

Sec.  3.  (6)  An  election  of  such  board  of  freeholders  may  be  called  at 
any  time  by  the  legislative  authority  of  any  such  city,  and  such  election 
shall  be  called  by  the  chief  executive  officer  of  any  such  city,  within  ten 
days  after  there  shall  have  been  filed  with  him  a  petition  demanding  the 
same,  signed  by  a  number  of  qualified  electors  residing  within  such  city, 
equal  to  25  per  centum  of  the  total  number  of  votes  cast  at  the  next 
preceding  general  municipal  election;  and  such  election  shall  be  held 
not  later  than  thirty  days  after  the  call  therefor.  At  such  election  a  vote 
shall  be  taken  upon  the  question  of  whether  or  not  further  proceedings 
toward  adopting  a  charter  shall  be  had  in  pursuance  to  the  call,  and  un- 
less a  majority  of  the  qualified  electors  voting  thereon  shall  vote  to  pro- 
ceed further,  no  further  proceeding  shall  be  had,  and  all  proceedings  up 
to  that  time  shall  be  of  no  effect. 

Sec.  4.  (a)  The  powers  of  the  initiative  and  referendum,  reserved  by 
this  constitution  to  the  people  of  the  State  and  the  respective  counties 
and  districts  therein,  are  hereby  reserved  to  the  people  of  every  municipal 
corporation  now  existing  or  which  shall  hereafter  be  created  within  the 
State,  with  reference  to  all  legislative  authority  which  it  may  exercise, 
and  amendments  to  charters  for  its  own  government  in  accordance  with 
the  provisions  of  this  constitution. 

Sec.  4.  (6)  Every  petition  for  either  the  initiative  or  referendum  in 
the  government  of  a  municipal  corporation  shall  be  signed  by  a  number  of 
qualified  electors  residing  within  the  territorial  limits  of  such  municipal 
corporation,  equal  to  25  per  centum  of  the  total  number  of  votes  cast  at 
the  next  preceding  election,  and  every  such  petition  shall  be  filed  with 
the  chief  executive  officer  of  such  municipal  corporation. 

Sec.  4.  (c)  When  such  petition  demands  the  enactment  of  an  ordi- 
nance or  other  legal  act  other  than  the  grant,  extension,  or  renewal  of  a 
franchise,  the  chief  executive  officer  shall  present  the  same  to  the  legis- 
lative body  of  such  corporation  at  its  next  meeting,  and  unless  the  said 
petition  shall  be  granted  more  than  thirty  days  before  the  next  election 
at  which  any  city  officers  are  to  be  elected,  the  chief  executive  officer 
shall  submit  the  said  ordinance  or  act  so  petitioned  for  to  the  qualified 
electors  at  said  election;  and  if  a  majority  of  said  electors  voting 
thereon  shall  vote  for  the  same,  it  shall  thereupon  become  in  full  force 
and  effect. 


560     THE  LAW  AND  THE  PRACTICE   OF  HOME   RULE 

Sec.  4.  (d)  When  such  petition  demands  a  referendum  vote  upon  any 
ordinance  or  any  other  legal  act  other  than  the  grant,  extension,  or  renewal 
of  a  franchise,  the  chief  executive  officer  shall  submit  said  ordinance  or 
act  to  the  qualified  electors  of  said  corporation,  at  the  next  succeeding 
general  municipal  election,  and  if,  at  said  election,  a  majority  of  the  elec- 
tors voting  thereon  shall  not  vote  for  the  same,  it  shall  thereupon  stand 
repealed. 

Sec.  4.  (e)  When  such  petition  demands  an  amendment  to  a  charter, 
the  chief  executive  officer  shall  submit  such  amendment  to  the  qualified 
electors  of  said  municipal  corporation  at  the  next  election  of  any  officers 
of  said  corporation,  and  if,  at  said  election,  a  majority  of  said  electors 
voting  thereon  shall  vote  for  such  amendment,  the  same  shall  thereupon 
become  an  amendment  to  and  a  part  of  said  charter,  when  approved  by 
the  governor  and  filed  in  the  same  manner  and  form  as  an  original  charter 
is  required  by  the  provisions  of  this  article  to  be  approved  and  filed. 

Almost  immediately  upon  the  admission  of  the  state  the  cities 
of  Oklahoma  became  active  in  the  direction  of  framing  and  adopt- 
ing charters.  There  were  in  the  state  about  sixty  cities  of  more 
than  2000  inhabitants.  Within  a  period  of  six  years  about  twenty 
cities  had  organized  under  charters  of  their  own  making.  The  vast 
majority  of  these,  if  not  indeed  all  of  them,  provided  the  commis- 
sion plan  of  government.1  By  January,  1915  there  were  cer- 
tainly not  more  than  six  cities  in  Oklahoma  with  a  population  of 
more  than  4000  inhabitants  that  had  failed  to  adopt  home  rule 
charters.2 

The  most  distinctive  feature  of  the  Oklahoma  provision,  as  com- 
pared with  the  provisions  of  the  other  states  which  have  been 
considered,  was  the  requirement  that  the  charter  or  any  amend- 
ment thereof  should,  after  its  ratification  by  the  electors,  be  sub- 
mitted to  the  governor  of  the  state  for  approval.  The  governor 
was  apparently  obligated  to  approve  the  charter  or  amendment 
unless  he  found  it  to  be  in  conflict  with  the  constitution  or  laws 
of  the  state.  Manifestly,  however,  there  would  be  no  means  of 

1  At  least  the  following  cities  have  adopted  home  rule  charters:    Muskogee, 
Oklahoma  City,  Enid,  Guthrie,  MacAlester,  Tulsa,  Ada,  Ardmore,  Bartlesville, 
El  Reno,  Lawton,  Miami,  Okmulgee,  Purcell,  Sapulpa,  Wagoner,  and  Duncan. 

2  These  cities  were  Altus,  Chickasha,  Durant,  Hugo,  Shawnee,  and  Vinita.     In 
some  of  these  freeholders'  charters  had  been  rejected  at  the  polls. 


HOME  RULE  IN  OKLAHOMA  561 

i 

controlling  the  discretion  of  the  governor  in  this  matter.     The 
provision,  therefore,  conferred  upon  the  chief  executive  of  the  state  ( 
the  absolute  power  to  veto  the  action  of  the  city.     There  has, 
however,  been  no  instance  in  Oklahoma  of  the  exercise  of  this  veto 
power  by  a  governor. 

The  introduction  of  this  device  into  the  home  rule  provisions  of 
the  Oklahoma  constitution  might  have  been  prompted  in  part  by 
consideration  of  the  fact  that  a  charter  framed  by  a  city  was  in 
effect  a  statute,  and  that  since  the  governor  was  given  a  veto  over 
statutes  enacted  by  the  legislature  it  was  appropriate  that  he 
should  likewise  be  given  a  veto  over  statutes  enacted  by  the  cities 
of  the  state.  It  is  far  more  probable,  however,  that  the  idea  in 
the  minds  of  those  who  framed  the  provision  was  that  the  chief 
executive  of  the  state  should  assist  in  keeping  the  charters  of  cities 
in  harmony  with  the  general  laws  and  policies  of  the  state.  This 
was  much  the  same  idea  that  the  framers  of  the  California  consti- 
tution entertained  when  they  required  that  all  charters  should  be 
approved  or  rejected  by  the  legislature.  We  have  seen  how  this 
provision  in  California  utterly  failed  to  accomplish  its  purpose.1 
It  is  highly  probable  that  the  Oklahoma  provision  requiring  the 
approval  of  the  governor  will  result  in  a  similar  failure.  It  is 
preposterous  to  suppose  that  any  governor  will  have  a  compre- 
hensive knowledge  of  all  the  general  laws  upon  the  statute  books, 
or  that,  having  such  knowledge,  he  will  devote  to  the  examination 
of  a  municipal  charter  the  time  and  attention  that  would  be  neces- 
sary to  convince  himself  that  such  charter  is  consistent  with  such 
general  laws.  The  veto  power  of  the  governor  even  as  applied 
to  bills  enacted  by  the  legislature  has  seldom  operated  to  prevent 
conflicts  in  statutes  or  to  preserve  harmony  and  consistency  in 
legislation.  Moreover,  in  recent  years  it  has  tended  more  and 
more  to  become  one  of  the  governor's  weapons  for  the  furtherance 
of  a  constructive  program  of  legislation ;  for  not  infrequently  has 
the  governor  employed  the  threat  of  the  veto  to  force  his  program 
through  the  legislature.  Indeed,  in  the  modern  relations  that 
exist  between  legislatures  and  governors  this  may  doubtless  be 

1  Supra,  218-220. 


562     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

said  to  be  the  most  important  aspect  of  the  veto  power.  But 
when  it  is  considered  that  in  respect  to  the  framing  and  adopting 
of  freeholders'  charters  the  governor  cannot  practically  make  use 
of  his  veto  power  in  any  such  manner,  it  is  immediately  apparent 
that  this  power  is  a  far  less  useful  device  as  applied  to  municipal 
charters  than  as  applied  to  laws  enacted  by  the  legislature.  In 
fact  it  is  impossible  to  see  how  this  scheme  could  be  productive  of 
any  material  benefit.  On  the  other  hand,  it  is  quite  easy  to  see 
that  in  the  hands  of  a  notional  and  stubborn  executive  it  might 
on  occasion  be  used  with  a  degree  of  pettiness  that  would  serve 
no  wise  purpose  but  would  only  create  bitterness  and  hostility. 

In  spite  of  the  fact  that  home  rule  for  cities  has  been  in  opera- 
tion in  Oklahoma  for  only  a  comparatively  short  time  the  courts  have 
in  a  considerable  number  of  cases  been  called  upon  to  construe 
and  apply  the  provisions  of  the  constitution  upon  this  subject.  A 
review  of  these  cases  will  indicate  at  least  the  direction  which  the 
interpretation  of  the  courts  has  taken. 

The  Power  of  the   City  to   control  Matters  pertaining  to  the  Pro- 
cedure for  adopting  Charters  and  Amendments 

Almost  immediately  upon  the  effectuation  of  the  constitution 
demand  was  made  upon  the  Oklahoma  court,  in  the  case  of  State 
ex  rel.  Reardon  v.  Scales,1  to  determine  whether  the  home  rule 
provisions  were  or  were  not  self-executing.  The  main  ground 
of  contention  seemed  to  be  that  the  constitution  did  not  explicitly 
prescribe  by  whom  a  proposed  charter  should  be  submitted  to 
the  qualified  electors  of  a  city  nor  who  should  fix  the  date  upon 
which  the  election  should  be  held.  The  court  declared  that  since 
it  was  provided  that  an  election  of  freeholders  might  be  called 
by  the  legislative  authority  of  the  city,  it  was  clearly  implied  that 
the  charter  should  be  submitted  to  the  voters  at  an  election  deter- 
mined upon  by  the  same  authority.  The  conclusion  was  reached 
that  this  slight  omission  in  the  constitutional  provision  did  not 
operate  to  prevent  it  from  being  self-executing.  The  scheme  was 

i  21  Okla.  683.     1908. 


HOME  RULE  IN  OKLAHOMA  563 

effective,  declared  the  court,  "  without  any  further  legislation  to 
that  end." 

The  case  under  review  involved  a  situation  in  which  a  board  of 
freeholders  in  Oklahoma  City  had  enacted  an  election  ordinance 
providing  for  the  submission  of  a  charter  at  a  special  election  and 
providing  also  for  a  primary  election  to  be  held  for  the  nomina- 
tion of  officers  under  the  charter  at  a  date  preceding  the  election 
upon  the  charter.  Having  declared  that  the  legislative  authority 
of  the  city  was  by  constitutional  implication  the  appropriate 
authority  to  set  the  time  for  the  election  at  which  the  charter 
should  be  voted  on,  the  court  naturally  held  that  this  ordinance 
enacted  by  the  freeholders  was  void.  It  was  urged  before  the  court 
that  a  constitutional  convention  has  "inherent  power  to  adopt 
an  ordinance  without  having  been  specially  authorized  thereto 
by  the  act  which  calls  such  convention  into  being."  But  the 
answer  was  given  that  even  if  there  had  chanced  to  be  absolute 
harmony  among  the  cases  upon  this  subject,  "such  authority  would 
not  be  applicable  to  this  case,"  because  a  constitutional  conven- 
tion represents  sovereignty  while  "a  board  of  freeholders,  .  .  . 
coming  into  being  by  virtue  of  delegated  power,  have  no  inherent 
authority  but  only  such  as  is  clearly  expressed  in  the  delegation 
of  the  power."  In  this  case  the  question  raised  was  not  as  to  the 
power  of  the  city  to  regulate  matters  pertaining  to  the  procedure 
of  drafting  and  adopting  a  charter  but  merely  as  to  the  competence 
of  the  board  of  freeholders  in  this  regard.  It  was  held  in  effect 
that  the  powers  of  such  a  board  must  be  strictly  construed. 

In  Stearns  v.  State  ex  rel.  Biggers  l  the  court  was  compelled  to 
recede  somewhat  from  the  position  taken  in  the  Reardon  case, 
although  that  case  was  in  no  wise  overruled  and  was  not  even 
expressly  qualified.  The  Stearns  case  arose  out  of  an  application 
for  a  mandamus  to  compel  the  mayor  and  council  of  Shawnee  to 
reconvene  as  a  canvassing  board  and  to  recanvass  the  vote  cast 
on  the  adoption  of  a  charter  for  the  city.  The  constitution  made 
no  provision  for  the  recanvass  of  votes  in  a  contested  election  upon 
the  subject  of  adopting  a  charter.  Nor  was  any  pertinent  provi- 

i  23  Okla.  462.     1909. 


564  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

sion  found  in  the  statutes  of  the  state.  The  court  simply 
declared  that  "if  no  other  remedy  exists  by  which  it  may  be  ascer- 
tained whether  frauds  were  committed  in  the  holding  of  this 
election,  the  legislative  department  of  the  state  should  be  com- 
pelled to  provide  such  a  remedy."  In  other  words,  it  was  clearly 
admitted  that  in  respect  to  this  matter  the  provisions  of  the  consti- 
tution were  incomplete  and  that  supplementary  legislation  was 
needed.  Moreover,  one  of  the  other  points  urged  in  this  case 
was  that  the  notice  of  election  issued  by  the  mayor  had  not  been 
properly  given ;  but  the  court  concluded  that  the  notice  had  been 
issued  in  conformity  with  a  provision  of  the  general  laws  of  the 
state  1  regulating  the  manner  of  the  issuance  of  proclamations  for 
municipal  elections.  It  was  declared  that  this  "statute  was 
applicable  to  the  election  held  in  April,  1908  for  the  purpose  of 
selecting  the  freeholders,  as  the  only  statute  requiring  the  notice 
of  the  election  to  be  given."  Here  again  the  court  looked  to  the 
laws  of  the  state  as  determining  the  sufficiency  of  the  call  of  the 
election  issued  by  the  mayor  of  the  city.  It  was  clearly  implied 
that  the  state  law  supplemented  the  provisions  of  the  consti- 
tution upon  the  subject  of  procedure  for  framing  and  adopting  a 
charter. 

The  home  rule  provisions  of  the  Oklahoma  constitution  expressly 
provided  for  the  exercise  of  initiative  and  referendum  powers  in 
the  amendment  of  freeholders'  charters  as  well  as  in  the  enact- 
ment of  municipal  ordinances.  The  exercise  of  these  powers  was 
regulated  by  the  constitution  in  considerable  detail.  The  home 
rule  charter  of  the  city  of  Guthrie,  adopted  in  1911,  failed  to  pro- 
vide specifically  for  the  initiative  and  referendum  as  applied  to 
the  amendment  of  such  charter.  It  had  been  held  by  the  supreme 
court  of  the  state  that  the  general  initiative  and  referendum  provi- 
sions 2  of  the  constitution  were  not  self-executing,  but  that  for 
effectuation  they  required  supplementary  legislation.  The  statute 
which  provided  this  supplementary  legislation  regulated  certain 
details  as  to  the  manner  in  which  initiative  and  referendum 

1  Wilson's  Rev.  and  Ann.  Stats,  of  Okla.,  1903,  sec.  354. 
8  Art.  V,  sees.  1-8. 


HOME  RULE  IN  OKLAHOMA  565 

powers  might  be  exercised  in  those  cities  that  failed  to  provide 
for  the  exercise  of  such  powers  through  the  medium  of  their  own 
charters. 

In  Lowther  v.  Nissley1  the  issue  was  presented  whether  this 
statute  did  or  did  not  apply  to  the  home  rule  city  of  Guthrie. 
The  court  held  that  the  statute  did  apply  and  that  the  charter  of 
Guthrie,  which  was  silent  upon  this  subject,  might  be  amended 
by  initiative  and  referendum  procedure  taken  under  the  provi- 
sions of  the  constitution  as  supplemented  by  the  general  laws  of 
the  state.  It  was  not  declared  that  the  city  could  not  have  regu- 
lated the  manner  in  which  the  initiative  and  referendum  powers 
that  were  reserved  by  the  constitution  should  be  exercised  in  the 
making  of  charter  amendments ;  but  it  was  clear  that  had  the 
legislature  failed  to  enact  the  law  in  question,  and  had  the  city 
also  failed  to  regulate  this  matter  in  its  charter,  there  would  have 
been  no  means  by  which  the  constitutional  provision  applying 
the  initiative  and  referendum  procedure  to  the  case  of  charter 
amendments  could  have  been  effectuated.  In  other  words, 
supplementary  legislation  was,  under  certain  conditions  at  least, 
indispensable. 

These  Oklahoma  cases  which  have  touched  upon  the  matter 
of  procedure  in  the  framing  and  adoption  of  charters  and  amend- 
ments are  of  importance  chiefly  because  they  indicate  that  al- 
though a  home  rule  provision  of  a  constitution  may  be  declared 
to  be  self -executing  and  may  in  fact  appear  to  be  so,  it  is  neverthe- 
less not  easy,  even  if  it  be  admitted  to  be  desirable,  to  cover  in  a 
constitutional  provision  all  of  the  infinite  details  pertaining  to 
the  elections  which  must  be  held  in  the  course  of  the  procedure 
for  the  framing  and  adoption  of  a  charter.  These  elections  must 
be  regulated,  and  it  is  perfectly  apparent  that,  at  least  for  the  first 
exercise  of  the  home  rule  powers,  regulations  of  this  kind  must 
be  found  in  the  state  laws,  unless  the  city  should  be  expressly 
empowered  to  establish  such  regulations  by  ordinance,  or  unless 
the  home  rule  provisions  of  the  constitution  are  elaborated  into 
an  election  code. 

*  38  Okla.  797.     1913. 


566     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Has  the  City  the  Power  to  provide  for  the  Sale  of  Public  Property  ? 

In  the  law  of  municipal  corporations  it  is  a  fairly  established 
rule  that  a  city  may  not  voluntarily  alienate  property  devoted  to 
a  public  use  without  express  grant  of  authority  to  do  so.1  More- 
over, in  the  cases  upon  this  subject  the  public  property  of  the  city 
has  been  defined  so  comprehensively  that  the  municipal  corporation 
is  in  fact  commonly  possessed  of  very  little  property  that  it  may 
dispose  of  without  direct  legislative  sanction.2  We  are  not  here 
concerned  with  the  argumentative  foundation  upon  which  this 
rule  is  predicated.  Suffice  it  to  say  that  property  in  a  park  has 
been  specifically  held  to  be  one  of  the  many  forms  of  property 
in  respect  to  which  the  municipality  may  be  seized  of  title  subject 
to  this  all-significant  limitation.3 

In  Owen  v.  City  of  Tulsa  4  action  to  prevent  the  city  from  con- 
tracting to  sell  a  public  park  was  brought  upon  the  ground  that 
a  freeholders'  charter  could  not  confer  such  competence  upon  a 
city.  The  charter  in  question  unequivocally  recognized  the 
authority  of  the  governing  board  of  commissioners  to  alienate 
such  property  by  ordinance.5  Relying  largely  upon  the  Missouri 
case  in  which  the  right  of  a  home  rule  city  to  exercise  the  power  of 
eminent  domain  was  sustained,6  the  court  declared  that  the  charter 
provision  and  the  action  of  the  city  taken  under  it  must  stand. 
In  other  words,  it  was  in  effect  held  that  although  the  power  in 
question  had  not  been  conferred  upon  the  city  by  statute  it  was 
nevertheless  embraced  within  the  scope  of  the  direct  constitu- 
tional grant  of  authority  to  frame  a  charter. 

1  Dillon,  Municipal  Corporations,  5th  ed.,  II,  sec.  575. 

2  On  this  point,  as  well  as  on  the  power  of  the  city  to  sell  property  acquired  for 
public  use  but  not  actually  so  used,  or  property  which  has  ceased  to  be  so  used, 
see  McBain,  "Due  Process  of  Law  and  the  Power  of  the  Legislature  to  Compel  a 
Municipal  Corporation  to  Levy  a  Tax  or  Incur  a  Debt  for  a  Strictly  Local  Pur- 
pose," in  Columbia  Law  Review,  14  :  407-428,  notes  32,  33,  34. 

3  See,  for  example,  State  v.  Woodward,  23  Vt.  92  (1850) :   Brooklyn  Park  Com- 
missioners v.  Armstrong,  45  N.  Y.  234  (1871). 

4  27  Okla.  264.     1910. 
6  Art.  II,  sec.  7. 

•  Kansas  City  v.  Marsh  Oil  Co.,  140  Mo.  458 ;  supra,  174. 


HOME  RULE  IN  OKLAHOMA  567 

Has  the  City  the  Power  to  acquire  or  regulate  a  Public  Utility  f 

The  constitution  of  Oklahoma  left  no  uncertainty  about  the 
competence  of  cities,  whether  under  home  rule  or  legislative 
charters,  to  acquire  public  utilities.  Such  competence  was  settled 
by  the  following  clause : 1 

Any  incorporated  city  or  town  in  this  state  may,  by  a  majority  of  the 
qualified  property  taxpaying  voters  of  such  city  or  town,  voting  at  an 
election  to  be  held  for  that  purpose,  be  allowed  to  become  indebted  in  a 
larger  amount  than  that  specified  in  section  twenty-six,  for  the  purpose 
of  purchasing  or  constructing  public  utilities,  or  for  repairing  same,  to  be 
owned  exclusively  by  such  city;  Provided,  that  any  such  city  or  town 
incurring  any  such  indebtedness  requiring  the  assent  of  the  voters  as 
aforesaid,  shall  have  the  power  to  provide  for,  and,  before  or  at  the  time 
of  incurring  such  indebtedness,  shall  provide  for  the  collection  of  an 
annual  tax  in  addition  to  the  other  taxes  provided  for  by  this  Constitu- 
tion, sufficient  to  pay  the  interest  on  such  indebtedness  as  it  falls  due, 
and  also  to  constitute  a  sinking  fund  for  the  payment  of  the  principal 
thereof  within  twenty-five  years  from  the  time  of  contracting  the  same. 

In  State  ex  rel.  Edwards  v.  Millar  2  question  was  raised  as  to  the 
meaning  of  the  term  "public  utility"  as  used  in  this  clause  of  the 
constitution.  This  case  did  not  relate  to  the  powers  of  a  home 
rule  city,  but  it  was  held  that  the  term  "public  utility"  was 
synonymous  with  the  term  "public  use."  Under  this  view  a 
sewer  system  was  declared  to  be  a  public  utility. 

In  State  ex  rel.  Manhattan  Construction  Co.  v.  Barnes  3  the 
issue  before  the  court  was  whether  the  city  of  Guthrie,  then  operat- 
ing under  a  legislative  charter,  enjoyed  the  power  to  issue  so-called 
public  utility  bonds  for  the  construction  of  a  convention  hall. 
The  principal  question  before  the  court  was  whether  a  conven- 
tion hall  could  be  included  within  the  category  of  public  utilities. 
Following  the  doctrine  of  the  Millar  case  the  court  discussed  at 
some  length  the  meaning  of  the  term  "public  use"  as  defined 
chiefly  in  the  cases  arising  out  of  the  exercise  of  the  power  of  emi- 
nent domain.  This  power  was  not  involved  in  the  Barnes  case 
for  the  city  did  not  propose  to  condemn  property  for  the  purpose 

1  Art.  X,  sec.  27.  *  21  Okla.  448.     1908.  3  21  Okla.  191.     1908. 


568  THE  LAW  AND  THE  PRACTICE  OF.  HOME  RULE 

of  constructing  the  proposed  convention  hall.  The  cases  on  this 
subject  were  regarded  as  in  point  merely  because  of  their  defini- 
tions of  the  term  "public  use."  Referring  to  the  two  definitions, 
one  of  which  lays  emphasis  upon  the  actual  ownership  of  prop- 
erty by  the  public  and  the  other  upon  the  use  of  the  property, 
whether  under  public  or  private  ownership,  in  such  a  manner  as  to 
inure  to  the  public  benefit,  the  court  declared  as  follows : 

It  is  unnecessary,  however,  for  us  to  consider  further  the  relative 
merits  of  these  two  different  views,  or  to  determine  which  one  is  correct. 
Under  the  facts  admitted  by  the  pleadings  and  agreed  to  in  the  statement 
of  facts  filed  in  this  case,  the  use  or  the  utility  under  consideration  meets 
all  the  requirements  of  both  views.  Said  convention  hall  is  to  be  con- 
structed exclusively  by  the  city  of  Guthrie,  and  is  to  be  a  public  building 
owned  exclusively  by  the  city,  and  to  be  used  by  the  public  in  accom- 
modating any  public  gathering  of  the  people  of  the  city,  at  any  and  all 
times  desired,  and  for  such  other  public  uses  as  may  be  designated  by  the 
mayor  and  council. 

The   opinion  recited   also : 

In  a  government  where  the  right  of  public  assembly  for  the  redress  of 
grievances  is  guaranteed  to  the  people,  where  the  policies  of  government 
are  in  a  great  measure  determined  at  public  gatherings  of  the  people  in 
political  conventions,  where  the  lecture  platform  has  become  so  im- 
portant a  factor  in  public  education,  and  where  people  frequently  assemble 
for  the  purpose  of  discussing  and  devising  ways  and  means  of  promoting 
their  varied  interest,  a  place  in  large  cities  where  such  gatherings  may  be 
had  under  comfortable  hygienic  conditions  is  not  only  a  public  con- 
venience and  benefit,  but  a  public  necessity.  We  know  of  no  case  in 
which  the  question  of  whether  a  convention  hall  is  a  public  use  has  been 
determined,  but  courthouses,  jails,  schoolhouses,  city  halls,  public  markets, 
almshouses,  public  parks,  boulevards,  commons  or  pleasure  grounds,  and 
places  of  historic  interest  are  examples  of  uses  that  have  been  declared 
by  the  courts  to  be  "public  uses." 

Upon  this  course  of  reasoning  it  was  held  that  a  convention  hall 
was  properly  included  within  the  definition  of  a  " public  use"  and 
therefore  within  the  meaning  of  the  constitutional  term  "  public 
utility."  There  is  doubtless  no  reason  to  cavil  with  the  reasoning 
of  the  court  by  which  it  was  declared  that  a  convention  hall  was 
a  property  devoted  to  a  public  use.  Such  holding  was  merely  in 


HOME  RULE  IN  OKLAHOMA  569 

line  with  those  more  or  less  progressive  ideas  which  contemplate 
without  alarm  the  gradual  expansion  of  American  municipal 
activities.  There  are,  however,  many  who  would  take  issue  with 
the  definition  given  by  the  court  in  this  case  of  the  term  "  public 
utility."  It  is  manifest  that  under  the  doctrine  here  laid  down 
any  property  that  might  be  acquired  by  a  city  for  a  public  purpose 
(and  the  city  can  acquire,  by  taxation  at  least,  no  property  for 
any  other  purpose)  would  be  a  public  utility.  This  is  certainly 
not  the  popular  concept  of  what  is  included  within  the  meaning 
of  the  term  in  question,  and  it  is  doubtful  whether  it  is  a  justified 
legal  concept  unless  the  court  desired  to  withdraw  from  this  term 
every  vestige  of  distinctive  meaning.  It  may  be  difficult  to  define 
the  term  "public  utility"  with  precision  ;  but  the  term  has  unques- 
tionably been  associated  with  those  properties,  whether  publicly 
or  privately  owned,  which  have  been  acquired  by  the  exercise 
of  the  power  of  eminent  domain,  or  which  necessitate  the  making 
of  such  peculiar  uses  of  the  public  highways  as  to  require  a  grant 
of  special  privilege  from  the  government,  or  which,  being  by 
nature  monopolistic  or  quasi-monopolistic  in  character,  occupy  a 
position  which  gives  the  public  peculiar  rights  in  and  powers  over 
them.  One  or  more  of  these  elements  certainly  enters  into  the 
meaning  of  the  term  " public  utility"  as  it  is  commonly  employed. 
In  the  case  of  a  convention  hall,  however  public  may  have  been 
its  use,  there  was  no  necessity  for  the  exercise  of  the  power  of 
eminent  domain ;  a  private  person  would  have  been  under  no 
obligation  to  secure  a  special  privilege  from  the  government  to 
launch  such  an  enterprise ;  nor  would  it  have  had  any  monopolistic 
or  quasi-monopolistic  characteristics.  Indeed,  had  the  enterprise 
been  undertaken  by  a  private  person  or  corporation  and  had 
occasion  for  a  declaration  upon  the  subject  arisen,  the  court  would 
unquestionably  have  ridiculed  the  idea  that  a  convention  hall 
operated  for  purposes  of  private  emolument  was  a  public  utility.* 
For  our  purposes  here  the  real  significance  of  the  decision  of 
the  court  in  this  case  lies  merely  in  the  exceedingly  liberal  con- 
struction that  was  placed  upon  the  term  "public  utility."  The 

1  See  somewhat  different  California  and  Colorado  cases,  supra,  363,  531. 


570  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

case  did  not  in  fact  turn  upon  any  question  of  the  home  rule  pro- 
visions of  the  constitution.  Guthrie,  as  has  already  been  said, 
was  not  even  operating  under  a  charter  of  its  own  making.  The 
competence  of  the  city  was  not  in  any  wise  referred  to  the  grant 
of  power  to  frame  a  charter  but  only  to  the  grant  of  power  to 
acquire  a  public  utility.  This  grant  of  power  was  not  limited  to 
cities  under  freeholders'  charters.  Questions  of  the  kind  presented 
in  this  case,  even  in  the  absence  of  express  provisions  of  the  consti- 
tution like  the  Oklahoma  provision  relating  to  public  utilities, 
are  in  fact  not  questions  that  bear  directly  upon  the  subject  of 
the  right  to  frame  a  charter.  If  it  be  granted  that  the  constitu- 
tional right  to  frame  a  charter  (where  the  legislature  is  not  author- 
ized to  define  the  scope  of  powers  to  be  exercised)  includes  the  right 
to  regulate  and  control  all  matters  of  municipal  concern,  practi- 
cally the  only  rule  of  law  that  should -be  considered  in  such  cases 
is  that  rule  which  declares  that  taxes  may  not  be  imposed  for  other 
than  a  public  purpose.  Barring  the  constitutional  provision  here 
relied  upon  by  the  Oklahoma  court,  and  considering  the  compe- 
tence of  a  home  rule  city  to  provide  through  the  medium  of  its 
own  charter  for  the  construction  and  maintenance  of  a  conven- 
tion hall,  it  is  obvious  that  the  only  question  the  court  would 
be  under  obligation  to  determine  would  be  as  to  the  public  char- 
acter of  such  an  enterprise ;  for  it  would  have  to  be  conceded  that 
if  this  enterprise  could  be  regarded  as  one  for  which  taxes  might 
be  properly  levied,  there  would  be  no  question  whatever  that  it 
was  a  matter  of  strictly  local  or  municipal  concern.  As  bearing 
upon  this  point  the  opinion  handed  down  in  the  Barnes  case  is  of 
considerable  significance,  regardless  of  agreement  or  disagreement 
with  the  court  as  to  the  manner  in  which  its  argument  was  applied 
in  reaching  a  definition  of  the  term  "public  utility." 

It  does  not  appear  that  the  legislature  of  Oklahoma  has  enacted 
any  law  purporting  to  control  or  regulate  the  manner  in  which 
cities  that  are  operating  under  legislative  charters  might  exercise 
the  power  conferred  upon  them  by  the  constitution  in  respect  to 
the  acquisition  of  public  utilities.  It  seems  to  have  been  assumed 
nevertheless,  as  in  the  Barnes  case  just  discussed,  that  the  con- 


HOME  RULE  IN  OKLAHOMA  571 

stitutional  provision  under  review  was  self -executing  and  that  such 
a  city  was  fully  competent  to  take  steps  in  this  direction  even 
though  neither  its  charter  nor  any  state  law  contained  any  pro- 
vision upon  the  subject.  A  reasonable  deduction  from  this 
apparent  assumption  would  be  that  a  city  under  a  freeholders' 
charter  would  have  the  authority  under  the  constitution  of 
Oklahoma  to  acquire  any  public  utility,  wholly  in  the  absence  of 
any  express  grant  of  authority  contained  in  its  charter. 

However,  in  the  so-called  " enabling  act"  passed  in  1908  the 
legislature  left  no  uncertainty  in  respect  to  the  competence  of  the 
home  rule  city  in  this  regard.  This  act  declared  as  follows : 1 

Every  municipal  corporation  within  this  State  shall  have  the  right  to 
engage  in  any  business  or  enterprise  which  may  be  engaged  in  by  a  per- 
son, firm,  or  corporation  by  virtue  of  a  franchise  from  said  corporation, 
and  every  city  containing  a  population  of  more  than  two  thousand  in- 
habitants shall  have  the  right  and  power  to  acquire,  own  and  maintain, 
within  or  without  the  corporate  limits  of  such  city,  real  estate  for  sites 
and  rights  of  way  for  public  utility  and  public  park  purposes,  and  for  the 
location  thereon  of  water-works,  electric  light  and  gas  plants,  hospitals, 
quarantine  stations,  garbage  reduction  plants,  pipe  lines  for  the  trans- 
mission and  transportation  of  gas,  water  and  sewerage,  and  for  any  plant 
for  the  manufacture  of  any  material  for  public  improvement  purposes, 
public  buildings,  and  for  all  such  purposes  shall  have  the  power  to  exer- 
cise the  right  of  eminent  domain,  either  within  or  without  the  corporate 
limits  of  such  city,  and  to  establish,  lay  and  operate  any  such  plant  or 
pipe  line  upon  any  land  or  right  of  way  taken  thereunder ;  and  shall  have 
and  exercise  the  right  to  manufacture  any  material  for  public  improve- 
ment purposes,  and  to  barter  or  exchange  the  same  for  other  material  to 
be  used  in  public  improvements  in  such  city,  or  to  sell  the  same  to  other 
cities  for  like  purposes  and  for  any  or  all  such  purposes,  in  order  to  raise 
means  to  carry  out  the  same,  shall  have  power  to  issue  and  sell  bonds, 
bearing  interest  not  to  exceed  five  per  centum  per  annum,  maturing  in 
twenty-five  years,  and  redeemable  at  will  in  not  less  than  ten  years; 
and  whenever  any  such  public  improvement  shall  have  been  constructed 
by  means  derived  from  the  sale  of  bonds,  as  above  provided,  it  shall  be 
the  duty  of  such  city  to  fix  the  rates  charged  for  service  to  the  public,  as 
nearly  as  practicable,  so  as  to  pay  the  interest  and  not  less  than  three 
per  centum  per  annum  on  the  principal  of  such  bonds  in  excess  of  the 
expense  of  maintenance  and  operation ;  provided,  that  whenever  it  shall 

1  Laws  of  Okla.,  1907-08,  p.  190,  sec.  3. 


572     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

be  found  impractical  to  issue  bonds  as  above  provided  for  any  improve- 
ment deemed  by  such  city  necessary  for  the  public  welfare,  without  in- 
creasing the  total  indebtedness  of  such  city  beyond  the  constitutional 
limit,  it  shall  be  lawful  for  such  city  to  lease  at  a  stipulated  rental  any 
public  improvement  or  utility  from  any  person,  firm  or  corporation  which 
will  contract  to  furnish  the  same;  provided,  any  such  rental  contract 
shall  reserve  to  such  city  the  option  to  purchase  such  improvement  or 
utility  in  future. 

It  is  interesting  to  observe,  perhaps,  that  if  this  act  may  be 
taken  as  a  legislative  interpretation  of  the  municipal  ownership 
powers  conferred  by  the  constitution,  the  definition  placed  upon 
the  term  "public  utility"  by  the  law-making  body  was  far  more 
nearly  in  accord  with  the  commonly  accepted  meaning  of  that 
term  than  was  the  definition  given  by  the  supreme  court  in  the 
above-mentioned  Barnes  case. 

No  case  has  as  yet  arisen  in  the  Oklahoma  jurisdiction  expressly 
determining  the  question  of  whether  the  home  rule  city  is  em- 
powered under  the  grant  of  authority  to  frame  a  charter  to  regu- 
late rates  and  other  matters  concerning  public  utilities.  In  one 
case,1  however,  in  which  the  only  issue  actually  settled  by  the 
court  was  that  a  town  had  no  power  under  an  act  of  Congress 
applying  to  the  Indian  Territory  to  regulate  telephone  rates,  the 
following  significant  declaration  was  made : 

Section  15,  art.  9,  of  the  Constitution,  provides  for  the  creation  of  a 
corporation  commission;  and  section  18  of  the  same  article  provides 
that: 

"The  Commission  shall  have  the  power  and  authority  and  be  charged 
with  the  duty  of  supervising,  regulating,  and  controlling  all  transporta- 
tion and  transmission  companies  doing  business  in  this  state,  in  all  matters 
relating  to  the  performance  of  their  public  duties  and  their  charges  there- 
for, and  of  correcting  abuses  and  preventing  unjust  discrimination  and 
extortion  by  such  companies;  and  to  that  end  the  Commission  shall, 
from  time  to  time,  prescribe  and  enforce  against  such  companies,  in  the 
manner  hereinafter  authorized,  such  rates,  charges,  classifications  of 
traffic,  and  rules  and  regulations,  and  shall  require  them  to  establish  and 
maintain  all  such  public  service  facilities,  and  conveniences  as  may  be 
reasonable  and  just,  which  said  rates,  charges,  classifications,  rules,  regu- 

1  South  MacAlester-Eufala  Telephone  Co.  v.  State  ex  rel.  Baker- Reidt  Mercan- 
tile Co.,  25  Okla.  524.  1910. 


HOME  RULE  IN  OKLAHOMA  573 

lations  and  requirements,  the  Commission  may,  from  time  to  time,  alter 
or  amend." 

That  the  power  to  regulate  the  charges  for  public  service  by  municipal 
corporations  is  a  power  which  it  was  the  intention  of  the  framers  of  the 
Constitution  should  be  exercised  by  the  sovereign  power  only  is  further 
evidenced  by  section  7  of  article  18,  entitled,  "Municipal  Corporations," 
which  provides  that : 

"No  grant,  extension,  or  renewal  of  any  franchise  or  other  use  of  the 
streets,  alleys,  or  other  public  grounds  or  ways  of  any  municipality  shall 
divest  the  state  or  any  of  its  subordinate  subdivisions,  of  their  control 
and  regulation  of  such  use  and  enjoyment.  Nor  shall  the  power  to  regu- 
late the  charges  for  public  service  be  surrendered,  and  no  exclusive  fran- 
chise shall  ever  be  granted." 

While  the  latter  consideration  may  not  be  of  great  weight  in  the  con- 
struction of  these  statutes,  yet  it  is  entitled  to  mention  as  a  fortuitous  cir- 
cumstance, at  least. 

With  due  respect  for  the  view  thus  expressed  —  to  wit,  that  it 
was  the  intention  of  the  framers  of  the  constitution  that  the  power 
to  regulate  utility  rates  should  be  exercised  only  by  the  "sovereign 
power"  —  it  ought  to  be  noted  that  the  court  accidentally  omitted 
a  very  important  proviso  contained  in  the  section  of  the  constitu- 
tion regulating  the  powers  of  the  corporation  commission.  This 
proviso  declared  that  "nothing  in  this  section  shall  impair  the 
rights  which  have  heretofore  been  or  may  hereafter  be  conferred 
by  law  upon  the  authorities  of  any  city  ...  to  prescribe  rules, 
regulations,  or  rates  of  charges  to  be  observed  by  any  public 
service  corporation  in  connection  with  services  performed  by  it 
under  a  municipal  .  .  ;  franchise  granted  by  such  city  ...  so 
far  as  such  services  may  be  wholly  within  the  limits  of  the 
city."  It  thus  appears  that  the  existing  statutory  or  charter 
rights  of  cities  to  regulate  public  utility  corporations  were  ex- 
pressly confirmed  to  them  by  the  constitution.  It  was  also  rec- 
ognized that  powers  in  this  regard  might  in  the  future  be  "con- 
ferred by  law."  Whether  for  this  purpose  a  home  rule  charter 
might  be  regarded  as  a  "law"  has  not  been  determined  iri  Okla^ 
homa.  But  in  view  of  the  opinion  expressed  by  the  court  in  the 
excerpt  quoted  above  it  is  probable  at  least  that  the  competence 
of  the  city  to  confer  upon  the  corporate  authorities  established 


574     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

by  its  freeholders'  charter  the  power  to  regulate  utility  corporations 
would  not  be  sustained. 

Does  a  State  Law  control  a  Charter  Provision  in  a  Matter  per- 
taining to  the  Organic  Form  of  the  Municipal  Government  f 

The  home  rule  provision  of  the  Oklahoma  constitution,  like 
that  of  the  Missouri  constitution  of  thirty-three  years  before, 
contained  the  same  curious  and  wholly  illogical  contradiction  of 
terms.  A  freeholders'  charter  was  declared  to  "supersede  any 
existing  charter  and  all  amendments  thereof"  and  in  the  same 
breath  was  required  to  be  "consistent  with  and  subject  to"  the 
laws  of  the  state.  At  the  time  of  the  admission  of  the  state  into 
the  Union  the  municipal  charters  in  force  consisted  of  a  combina- 
tion of  general  and  special  laws.  These  were  certainly  "laws  of 
the  state."  How,  then,  could  a  home  rule  charter  supersede  such 
"laws"  and  still  be  consistent  with  and  subject  to  them?  For 
the  future  the  constitution  forbade  the  legislature  to  enact  special 
laws  for  cities.1  But  could  the  legislature  enact  general  laws  for 
classes  of  cities  which  the  charters  of  home  rule  cities  must  be 
consistent  with  and  subject  to?  In  other  words,  would  any  law 
that  applied  generally  to  a  class  of  cities  operate  to  amend  a  free- 
holders' charter  to  the  extent  of  any  conflict,  just  as  such  laws  had 
been  held  to  amend  home  rule  charters  in  California  under  the 
original  constitutional  provision,  and  in  Washington  under  the 
provision  as  yet  unchanged,  and  in  Minnesota  under  a  far  more 
explicit  declaration  of  the  fundamental  law? 

The  uncertainty  of  the  constitution  upon  this  point  appears 
to  have  been  considered  by  the  first  state  legislature  that  assembled 
in  Oklahoma.  In  spite  of  the  opinion  handed  down  in  the  Rear- 
don  case  to  the  effect  that  the  home  rule  provision  of  the  constitu- 
tion was  self-executing,  the  legislature  promptly  enacted  a  so- 
called  "home  rule"  or  "enabling"  act.  After  rewriting  the  pro- 
visions of  the  constitution  itself  this  act  declared  as  follows : 2 

1  Art.  XVIII,  sec.  1. 

«  Laws  of  Okla.,  1908,  ch.  12,  sec.  4. 


HOME  RULE  IN  OKLAHOMA  575 

When  a  charter  for  any  city  of  this  state  shall  have  been  framed, 
adopted  and  approved  according  to  the  provisions  of  this  act,  and  any 
provisions  of  such  charter  shall  be  in  conflict  with  any  law  or  laws  relat- 
ing to  cities  of  the  first  class  in  force  at  the  time  of  the  adoption  and  ap- 
proval of  such  charter,  the  provisions  of  such  charter  shall  prevail  and  be 
in  full  force,  notwithstanding  such  conflict,  and  shall  operate  as  a  repeal 
or  suspension  of  such  state  law  or  laws  to  the  extent  of  such  conflict; 
and  such  state  law  or  laws  shall  not  thereafter  be  operative  in  so  far  as 
they  are  in  conflict  with  such  charter;  provided,  that  such  charter  shall 
be  consistent  with  and  subject  to  the  provisions  of  the  Constitution,  and 
not  in  conflict  with  the  provisions  of  the  Constitution  and  laws  relating 
to  the  exercise  of  the  initiative  and  referendum,  and  other  general  laws 
of  the  state  not  relative  to  cities  of  the  first  class. 

Here  was  at  least  a  partial  legislative  interpretation  of  the 
uncertain  requirements  of  the  constitution.  Existing  statutes 
applicable  to  cities  of  the  first  class  (all  cities  of  over  two  thou- 
sand inhabitants  and  therefore  all  cities  entitled  to  frame  charters) 
were  not  to  be  construed  as  being  included  in  those  "laws"  which 
a  freeholders'  charter  must  be  "consistent  with  and  subject  to." 

In  the  case  of  Lackey  v.  State  ex  rel.  Grant,1  where  contention 
was  made  that  a  general  municipal  law  enacted  many  years 
before  by  the  territorial  legislature  operated  to  control  the  provi- 
sions of  a  freeholders'  charter  in  conflict  therewith,  the  court 
declared  among  other  things  that  to  give  the  constitutional  provi- 
sion the  construction  asked  for  would  necessitate  that  this  home 
rule  statute  "be  struck  down  as  in  violation  of  the  constitution ;" 
for,  said  the  court,  if  the  constitution  required  every  charter 
"to  be  consistent  with  every  law  of  the  state,  whether  the  same 
pertains  to  municipal  matters  or  not,  then  clearly  the  legislature 
could  not  by  its  act  free  such  a  charter  from  such  limitation." 

This  was  strange  doctrine  indeed.  It  was  equivalent  to  assert- 
ing that  the  legislature  could  not  by  law  repeal  a  law.  At  the 
time  of  the  passage  of  the  home  rule  act  there  existed  a  great  body 
of  municipal  charter  statutes.  This  act  simply  declared  that 
under  certain  conditions  cities  should  not  be  subject  to  this  body 
of  statutes.  Was  this  act  any  less  a  "law"  which  charters  should 

i29Okla.  255.     1911. 


576     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

be  consistent  with  and  subject  to  than  the  laws  which  it  condi- 
tionally repealed?  Obviously  not.  It  would  seem  unquestion- 
able, unless  it  could  be  held  that  this  was  not  a  general  law  within 
the  requirement  of  the  constitution,  that  it  was  entirely  within 
the  competence  of  the  legislature  by  its  own  grace  to  withhold 
by  statute  the  controlling  force  over  freeholders'  charters  of  a 
body  of  statutes  which  the  legislature  itself  had  previously  im- 
posed. Under  such  circumstances,  however,  the  freedom  of 
home  rule  charters  from  the  domination  of  state  laws  would  natu- 
rally be  referable  to  the  action  of  the  legislature  rather  than  to  the 
constitution. 

Aside  from  the  impeachable  doctrine  thus  laid  down,  this  Lackey 
case  is  of  prime  importance  because  of  the  views  expressed  by  the 
court,  wholly  irrespective  of  the  statute  referred  to,  as  to  the  mean- 
ing of  the  apparently  conflicting  declarations  of  the  home  rule 
provisions  of  the  constitution.  The  case  involved  the  validity  of 
a  charter  providing  the  commission  form  of  government.  It 
was  contended  that  a  general  law  of  the  territory  of  Oklahoma; 
which  required  that  the  powers  of  cities  of  the  first  class  should 
be  exercised  by  a  mayor  and  'council  and  that  members  of  the 
council  should  be  elected  by  wards,1  operated  to  invalidate  the 
freeholders'  charter  of  Oklahoma  City,  which  vested  such  powers 
in  a  commission  of  five  members  elected  at  large.  On  the  subject 
of  the  meaning  of  the  constitution  the  court  expressed  its  opinion 
as  follows : 

Counsel  for  respondents  concede  that  the  foregoing  section  authorizes 
cities  and  towns  having  the  population  specified  to  frame  a  charter  for 
their  own  government,  but  they  insist  that  that  portion  of  the  section 
reading  "consistent  with  and  subject  to  the  Constitution  and  laws  of  the 
state"  renders  invalid  any  provision  of  such  a  charter  that  is  in  conflict 
with  any  law  of  the  state,  whether  such  law  pertains  to  general  matters 
of  the  state  and  its  government,  or  peculiarly  to  municipal  affairs.  Un- 
influenced by  the  context  of  the  section  in  which  the  foregoing  clause  is 
found,  there  is  reason  in  the  broad  language  of  this  clause  to  support 
respondents'  contention ;  but  this  clause  must  be  read  in  connection  with 
the  whole  section  and  all  its  parts,  and  the  whole  be  construed  so  as  to 

1  Wilson's  Rev.  and  Ann.  Stats.,  1903,  sees.  348,  353. 


HOME  RULE  IN  OKLAHOMA  577 

give  each  and  every  part  meaning  and  force.  It  must  have  been  con-- 
templated  by  the  framers  of  the  Constitution  and  the  people  in  adopting 
it  that  the  charters  authorized  by  this  section  to  be  framed  by  the  cities 
would  not  be  uniform,  but  would  ,be  adapted  to  the  various  needs  of  the 
localities  in  which  they  are  adopted ;  and  that  some  of  them,  if  not  all, 
would  in  some  respects,  conflict  with  the  charters  theretofore  existing  in 
such  municipalities;  for,  unless  such  be  true,  then  that  portion  of  the 
section  providing  that  upon  such  a  charter  being  approved  it  shall  become 
the  organic  law  of  the  municipality,  and  supersede  any  existing  charter, 
is  meaningless.  All  municipal  corporations  that  now  exist  or  may  here- 
after exist  in  this  state  may  be  classified  with  respect  to  the  time  of  their 
creation  into  two  classes  —  first,  those  existing  at  the  time  of  the  admis- 
sion of  the  state,  and,  second,  those  created  thereafter.  The  charter  of 
those  existing  at  the  time  of  the  admission  of  the  state  consists  of  the 
statutes  extended  in  force,  defining  their  powers  and  regulating  the  exer- 
cise thereof,  and  except  as  is  authorized  by  section  3a,  article  18,  the  char- 
ter of  all  corporations  of  the  second  class  will  always  be  found  in  a  general 
statute  of  the  state;  for,  by  section  1,  article  18,  supra,  the  Legislature  is 
prohibited  from  granting  to  such  corporations  powers  in  any  other  way. 
The  framers  of  the  Constitution  must  have  been  aware  of  this  condition 
when  they  provided  that  the  newly  created  charter  by  the  freeholders 
should  supersede  any  existing  charter,  and  must  have  known  that  in 
order  for  a  newly  created  charter  to  supersede  an  existing  charter  it  must 
supersede  some  statute  of  the  state.  If  it  was  meant  that  the  free- 
holders could  adopt  only  a  charter  in  conformity  with  the  provisions  of 
the  general  statutes,  and  add  thereto  provisions  not  inconsistent  with 
the  statute  creating  such  corporations,  that  would  not  be  the  for- 
mation of  a  new  charter,  but  would  be  the  adoption  of  the  previously 
existing  charter,  with  amendments  thereto  not  inconsistent  with  its  pre- 
vious provisions. 

Again,  if  the  present  general  statute  for  the  organization  of  municipal 
corporations  does  not  cover  and  make  provisions  for  all  municipal  affairs, 
still,  the  Legislature  might,  under  the  construction  contended  for  by  re- 
spondents, pass  a  general  act  that  embraced  the  entire  field  of  municipal 
matters,  and  grant  every  possible  power  that  could  be  exercised  by  such 
a  corporation,  or  by  its  terms  prohibit  any  municipal  corporation  of  the 
state  from  exercising  any  power  not  granted  in  its  provisions.  In  that 
event,  all  that  a  city  could  do  under  the  provisions  of  section  3a,  supra, 
in  the  formation  of  a  charter  for  its  own  government,  would  be  to  adopt 
in  hcec  verba  the  general  statute.  Such  a  result  would  render  section  3a 
nugatory  and  the  exercise  of  any  power  it  is  supposed  to  grant  useless, 
and  result  in  its  effectual  repeal  by  an  act  of  the  Legislature,  without  such 
power  having  been  specifically  granted  to  the  Legislature.  A  construe- 


578     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tion  of  this  section  that  will  lead  to  such  result  ought  not  to  be  adopted 
when  such  is  not  the  clear  manifest  meaning  indicated  by  its  terms.  It 
was  intended  that  the  Legislature  should  have  power,  under  the  limita- 
tions expressed  in  section  1,  art.  18,  supra,  to  provide  for  the  incorporation 
and  organization  of  all  cities  and  towns  in  the  state  into  municipal  cor- 
porations except  those  cities  which  might  in  the  future  exercise  the  power 
of  framing  their  own  charter  as  provided  by  section  3a.  By  this  section 
the  people  of  the  state,  in  the  exercise  of  their  sovereign  power  and  by 
means  of  their  organic  law,  have  delegated  to  the  inhabitants  of  cities 
having  a  population  of  more  than  2,000  the  power,  to  be  exercised  by 
such  inhabitants  at  their  option,  to  frame  a  charter  for  their  own  local 
government,  which  is  to  become  the  organic  law  of  such  government,  and 
is  to  supersede  the  laws  of  the  state  in  conflict  therewith,  in  so  far  only  as 
they  attempt  to  regulate  merely  municipal  affairs.  .  .  . 

The  conclusion  was  reached  that  whether  the  powers  of  the  city 
under  a  freeholders'  charter  shall  be  exercised  by  a  board  of  com- 
missioners or  by  a  mayor  and  council  "is  purely  a  matter  of 
municipal  or  local  concern."  "It  in  no  manner,"  said  the  court, 
"interferes  with  or  infringes  upon  matters  of  the  state  at  large, 
or  affects  its  people  generally ;  and,  in  the  absence  of  such  provi- 
sion in  the  charter  being  in  conflict  with  any  provision  of  the  con- 
stitution, it  supersedes  the  statute." 

Although  this  case  involved  the  relation  between  a  previously 
enacted  law  and  a  charter  provision,  the  court  expressed  no  un- 
certain opinion  as  to  the  supremacy  of  a  home  rule  charter  in  all 
matters  of  local  concern  over  conflicting  state  laws  whether  enacted 
before  or  after  the  adoption  of  such  charter.  The  laws  which 
charters  must  be  consistent  with  and  subject  to,  no  matter  when 
enacted,  were  only  those  laws  which  did  not  "attempt  to  regulate 
merely  municipal  affairs."  Otherwise  the  grant  of  power  to  frame 
a  charter  was  "meaningless."  It  was  thus  that  the  uncertain 
clause  of  the  Oklahoma  constitution  was  by  judicial  legislation 
made  in  effect  to  read  that  home  rule  charters  should  be  "consist- 
ent with  and  subject  to  state  laws  of  general  applicableness  which 
related  to  other  than  municipal  or  local  affairs."  This  was  prac- 
tically identical  with  the  rule  of  construction  that  was  ultimately 
laid  down  in  Missouri. 


HOME  RULE  IN  OKLAHOMA  579 

In  Adler  v.  Jenkins  l  one  of  the  contentions  made  was  that  the 
provision  of  the  charter  of  Guthrie  which  required  the  appoint- 
ment of  the  treasurer  by  the  mayor  was  void  as  being  in  conflict 
with  a  previously  enacted  general  law  of  the  state  requiring  the 
election  of  such  officer  in  cities  of  the  first  class.  Applying  the 
doctrine  of  the  Lackey  case,  the  court  held  that  the  regulation 
of  the  manner  in  which  such  an  officer  should  be  chosen  was  a 
matter  of  local  concern  and  therefore  subject  to  charter  control. 

In  Bridgman  v.  Roberts  2  the  point  at  issue  was  whether  the 
city  of  Ardmore  was  competent  by  amendment  to  a  freeholders' 
charter  to  reduce  the  salary  of  the  incumbent  city  commissioners 
from  six  hundred  dollars  a  year  to  a  stipend  of  two  dollars  per 
meeting  with  a  maximum  of  one  hundred  and  four  dollars  a  year. 
The  principal  contention  in  the  case  seems  to  have  been  that  such 
action  by  the  city  was  invalid  in  its  application  to  incumbent 
officers  by  reason  of  a  provision  of  the  constitution  3  which  de- 
clared that  "in  no  case  shall  the  salary  or  emoluments  of  any 
public  official  be  changed  after  his  election  or  appointment." 
It  was  held  that  there  was  no  "vested  right  in  any  municipal 
office ;"  that  "in  the  absence  of  a  constitutional  limitation  to  the 
contrary,  the  power  that  creates  a  municipal  office  .  .  .  may, 
by  an  amendment  of  its  charter,  abolish  the  office  and  its  tenure 
at  any  time,  and  create  another  office  of  like  character  with 
different  tenure  and  salary;"  and  that  "a  constitutional  provi- 
sion that  in  no  case  shall  the  salary  or  emoluments  of  any  public 
officer  be  changed  during  his  term  of  office  does  not  impair  such 
right"  vested  in  the  creating  authority.  While  the  court  did  not 
in  this  case  expressly  declare  that  this  was  a  municipal  affair,  and 
while  it  was  not  a  state  law  but  a  provision  of  the  constitution  that 
was  urged  against  the  competence  of  the  city,  it  was  apparently 
in  the  mind  of  the  court  that  the  matter  of  the  compensation  of 
municipal  officers  was  clearly  an  appropriate  subject  of  local 
control. 

The  above-mentioned  cases,  as  well  as  others  to  be  mentioned, 
present  a  fairly  adequate  conception  of  the  general  doctrine  which 

1  33  Okla.  117.     1912.  »  40  Okla.  495.     1914.  3  Art.  XXIII,  sec.  10. 


580     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

has  been  and  doubtless  will  in  the  future  be  applied  by  the  supreme 
court  of  Oklahoma  in  the  construction  of  the  provisions  of  the 
constitution  which  purport  to  determine,  though  certainly  without 
accuracy  or  precision  of  meaning,  the  order  of  supremacy  between 
state  laws  and  charter  provisions  that  are  found  to  be  in  conflict. 

Does  a  State   Law  control  a  Charter   Provision  in  Respect  to  the 
Issuance  of  Municipal  Bonds  ? 

In  March,  1910  the  legislature  of  Oklahoma  passed  "an  act  for 
the  protection,  validation,  and  sale  of  bond  issues  of  the  state, 
counties,  and  municipalities,  and  all  other  political  organizations 
and  subdivisions  of  the  state."  l  This  act  made  the  attorney 
general  ex  officio  "bond  commissioner"  and  required  him  to 
"propose  uniform  forms  and  prescribe  a  method  of  procedure  under 
the  laws  "  for  the  issuance  of  all  public  securities,  and  to  "examine 
into  and  pass  upon  any  security  so  issued."  In  State  v.  West  2 
—  a  case  which  did  not  involve  any  home  rule  question  —  this 
statute  was  interpreted  to  impose  upon  the  bond  commissioner 
the  duty  of  ascertaining  whether  statutory  authority  existed  for 
the  issuance  of  every  public  security  and  whether  the  forms  and 
methods  of  procedure  prescribed  by  the  statute  had  been  complied 
with.  The  statute  expressly  provided  that  "no  bond  hereafter 
issued  by  any  political  or  municipal  subdivision  of  the  state  shall 
be  valid  (howsoever  authorized)  without  the  certificate  of  said 
bond  commissioner."  In  the  interest  of  avoiding  the  difficulties 
that  so  frequently  arise  out  of  informalities  or  ultra  vires  action 
in  the  issuance  of  public  securities,  this  law  merely  established  the 
system  of  centralized  administrative  supervision  which  has  been 
provided  in  a  number  of  states. 

In  August,  1911  the  people  of  the  city  of  Tulsa,  pursuant  to 
certain  provisions  of  their  freeholders'  charter,  voted  in  favor  of 
an  issue  of  street-paving  bonds.  The  case  of  In  re  Submission  of 
Certain  Bonds  of  the  City  of  Tulsa  3  arose  out  of  an  application 

i  Laws  of  Okla.,  1901,  p.  182.  '  29  Okla.  503.     1911. 

••31  Okla.  648.     1912. 


HOME  RULE  IN  OKLAHOMA  581 

that  was  made  to  the  bond  commissioner  for  his  certification. 
This  the  commissioner  refused  to  give  on  the  ground  that  the 
statute  imposed  no  duty  upon  him  in  respect  to  bonds  issued  by 
authority  of  a  home  rule  charter.  The  court  declined  to  sustain 
this  view,  holding  that  the  authority  and  obligation  of  the  com- 
missioner extended  to  every  municipal  bond  without  regard  to 
the  source  of  its  authorization. 

The  home  rule  charter  of  the  city  manifestly  contemplated  that 
action  thereunder  was  sufficient  to  legalize  a  bond  issue.  On 
the  other  hand,  the  statute  expressly  required  the  examination 
by  and  the  certification  of  a  state  officer  to  validate  such  local 
action.  The  applicableness  of  the  law  was  nevertheless  fully 
upheld,  and  the  implication  was  thus  given  that  this  was  not 
a  matter  of  municipal  concern  in  respect  to  which  a  charter 
need  not  be  consistent  with  and  subject  to  the  laws  of  the  state. 
This  point  was  not  specifically  discussed,  for  the  reason  doubt- 
less that  the  city  itself  had  acquiesced  in  this  measure  of  state 
control.  But  the  significance  of  the  implication  of  this  case  is 
obvious;  for  if  matters  pertaining  to  the  issuance  of  munic- 
ipal bonds  are  state  affairs  it  is  difficult  to  see  why  the  state 
legislature  might  not  through  the  medium  of  general  laws  suc- 
cessfully assert  a  complete  supremacy  over  every  other  aspect 
of  local  finance. 

Has   the  City  the  Power  to  impose  Qualifications  for  Municipal 

Suffrage  f 

An  interesting  question,  which  was  in  no  wise  touched  upon 
by  the  court,  is  presented  by  one  of  the  facts  involved  in  the  Tulsa 
bond  case  just  mentioned.  The  constitution  of  Oklahoma  re- 
quired the  assent  of  three-fifths  of  the  voters  for  every  municipal 
indebtedness  in  excess  of  current  annual  income  and  revenue.1 
It  also  imposed  a  debt  limit  which  might  be  exceeded  only  for  the 
purchase  or  construction  of  public  utilities  and  only  upon  the 
approval  of  a  majority  of  the  qualified  taxpaying  voters.2  From 

1  Art.  X,  sec.  26.  *  Art.  X,  sees.  26,  27. 


582  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  statement  of  the  court  it  appears  that  the  charter  of  Tulsa 
required  a  three-fifths  vote  of  the  "  qualified  property  taxpaying 
voters"  for  the  approval  of  the  issue  of  street  paving  bonds  in- 
volved in  the  action,  which  vote  was  secured.  It  is  obvious  at  a 
glance  that  this  charter  requirement  added  to  the  general  consti- 
tutional qualifications  for  suffrage  the  important  qualification  of 
being  a  taxpayer.  No  voter  who  had  not  this  additional  quali- 
fication might  participate  in  an  election  of  this  kind,  where,  it 
will  be  noted,  there  was  no  question  of  exceeding  the  debt  limit  for 
a  public  utility  purpose,  unless,  indeed,  the  paving  of  streets  could 
be  gathered  under  the  expansive  wings  of  the  term  "public 
utility  "  as  defined  by  the  Oklahoma  court.1 

Provisions  of  a  character  similar  to  this  are  by  no  means  un- 
common in  legislative  charters;  and  the  rule  is  well  established 
that  the  legislature  is  competent  to  enact  such  provisions,  on  the 
ground  that  it  is  restricted  by  the  constitutional  qualifications 
for  suffrage  only  in  respect  to  those  elections  for  which  the  consti- 
tution itself  makes  provision.  Although  the  point  has  never  been 
judicially  passed  upon  in  any  home  rule  state,2  it  is  a  fact  that  a 
number  of  freeholders'  charters  have,  like  this  charter  of  Tulsa, 
imposed  additional  qualifications  for  the  exercise  of  municipal 
suffrage  in  elections  held  upon  financial  or  franchise  propositions 
and  have  otherwise  recognized  the  voice  of  property  owners  or 
taxpayers  in  certain  municipal  activities.  But  logic  would  seem 
to  declare  that  if  the  city  is  competent  to  impose  suffrage  limita- 
tions in  one  kind  of  election,  it  enjoys  a  like  competence  in  respect 
to  all  local  elections ;  and  if  the  city  is  empowered  to  restrict  the 
suffrage,  it  is  likewise  empowered  to  expand  it  —  to  extend  the 
suffrage  to  women,  for  example.  Of  the  states  which  have  granted 
to  cities  the  power  to  frame  their  own  charters,  Arizona,  Califor- 
nia, Colorado,  Oregon,  and  Washington  have  conferred  the  ballot 
privilege  upon  women.  It  would  seem,  however,  that  the  leaders 

1  Supra,  567  ff. 

2  In   Mitchell  «.  Carter,  31  Okla.  592  (1912),  infra,  584,  a  somewhat  strained 
point  in  respect  to  imposition  of  suffrage  qualifications  by  a  freeholders'  charter 
appears  to  have  been  raised,  but  it  was  dismissed  on  the  ground  that  such  a  ques- 
tion could  not  be  raised  in  the  proceedings  of  that  case. 


HOME  RULE  IN  OKLAHOMA  583 

of  the  anti-woman's  suffrage  movement  are  perhaps  missing  an 
opportunity  in  not  waging  a  fight  before  boards  of  freeholders  or 
charter  conventions  in  these  states  for  the  withdrawal  of  this 
privilege  as  to  municipal  elections  in  specific  cities.  And  it  would 
seem  also  that  the  protagonists  in  the  cause  of  woman's  suffrage 
have  been  somewhat  derelict  in  their  failure  to  institute  campaigns 
for  an  extension  of  the  voting  right  through  the  medium  of  free- 
holders' charters  or  amendments  in  the  cities  of  Missouri,  Minne- 
sota, Oklahoma,  Ohio,  and  Nebraska.1 

Does  a  State  Law  control  a  Charter  Provision  regulating  Elections  ? 

In  the  case  of  Lackey  v.  State  ex  rel.  Grant,2  already  mentioned 
in  another  connection,  one  of  the  contentions  made  was  that  a 
law  enacted  in  1910  which  purported  to  fix  the  date  upon  which 
municipal  elections  should  be  held  superseded  and  controlled  a 
conflicting  provision  of  the  charter  of  Oklahoma  City.  It  was 
specifically  provided  in  this  law  that  in  all  cities  with  freeholders' 
charters  establishing  a  commission  form  of  government  "the  elec- 
tive officers  provided  for  therein  shall  be  elected  at  the  same  time 
and  in  the  same  manner  as  herein  provided  for  the  election  of  offi- 
cers in  other  cities  and  towns  in  this  state."  It  was  further  pro- 
vided that  in  all  cases  in  which  the  commission  form  of  govern- 
ment should  be  adopted  more  than  four  months  before  the  date 
fixed  by  the  law  for  the  holding  of  the  general  municipal  election, 
the  legislative  authority  of  such  city  should  be  empowered  to  call 
a  special  election  for  the  choice  of  officers.  The  charter  adopted 
in  Oklahoma  City  required  that  a  special  election  for  the  choice 
of  officers  be  held  on  the  eighth  Tuesday  following  the  adoption 
of  the  charter  and  its  approval  by  the  governor.  This  provision 
was  in  conflict  with  the  law,  which,  as  above  noted,  required  that 
the  date  of  a  special  election  for  such  purpose  should  be  fixed  by 
the  legislative  authority  of  the  city.  On  the  question  of  the  con- 

1  Michigan  and  Texas  would  doubtless  be  excluded  since  the  home  rule  powers 
of  cities  in  those  states  are  enumerated  by  statute.     In  neither  state  is  the  authority 
conferred  upon  cities  to  regulate  the  qualifications  for  suffrage. 

2  29  Okla.  255  (1911)  ;  supra,  575. 


584  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

flict  between  the  state  law  and  the  charter  provision  the  court 
declared  as  follows : 

The  time  of  holding  a  special  election  for  the  election  of  the  officers 
provided  for  under  any  charter  is  a  matter  that  in  no  way  concerns  the 
state  at  large,  or  affects  the  people  generally,  but  pertains  peculiarly  to 
the  municipality  and  the  people  thereof  in  which  the  charter  has  been 
adopted;  and,  under  the  conclusion  reached  upon  the  proposition  first 
discussed,  the  charter  will  supersede  the  general  act  of  the  Legislature 
providing  for  the  fixing  of  the  time  of  such  election,  unless  the  charter 
provision  is  inconsistent  with  some  provision  of  the  Constitution. 

In  Mitchell  v.  Carter  1  the  main  point  determined  by  the  court 
seems  to  have  been  that  the  validity  of  a  freeholders'  charter  could 
not  be  collaterally  attacked  in  a  proceeding  brought  by  a  person 
elected  to  an  office  created  by  such  charter.  But  in  addition  to 
the  rule  laid  down  in  respect  to  this  matter  the  court  discussed  at 
length  certain  contentions  that  were  made  in  regard  to  the  su- 
premacy of  state  laws  over  charter  provisions  in  the  matter  of  elec- 
tions. The  first  of  these  contentions  was  that  a  provision  of  the 
charter  which  required  the  appointment  of  election  officers  by  the 
mayor  of  the  city  was  void  as  being  in  conflict  with  a  state  law 
which  provided  for  their  appointment  by  the  county  election  board. 
The  second  contention  was  that  the  provision  of  the  charter  which 
required  a  non-partisan  ballot  was  void  as  being  in  conflict  with 
the  general  primary  election  law  of  the  state. 

In  answer  to  these  contentions  it  was  held  by  the  court,  follow- 
ing the  Lackey  case,  that  "the  election  of  municipal  officers  is 
strictly  a  municipal  affair/'  and  that  it  was  in  consequence  within 
the  power  of  the  people  of  the  municipality  to  provide  for  this 
purpose  and  to  fix  the  time  and  place  of  holding  local  elections. 
Reference  was  made,  however,  to  a  provision  of  the  constitution  2 
which  imposed  upon  the  legislature  the  duty  of  providing  a  man- 
datory primary  election  system  which  should  "provide  for  the 
nomination  of  all  candidates  in  all  elections  for  state,  district, 
county,  and  municipal  officers."  It  was  clear,  said  the  court, 
that  it  was  an  obligation  of  the  legislature  to  create  a  primary 

1  31  Okla.  592.     1912.  *  Art.  Ill,  sec.  5. 


HOME  RULE   IN  OKLAHOMA  585 

system  for  the  nomination  of  candidates  for  office  in  all  munici- 
palities, including  those  operating  under  freeholders'  charters, 
although  no  legislative  obligation  was  provided  by  the  constitu- 
tion in  respect  to  the  election  of  municipal  officers.  For  the  pur- 
pose of  providing  a  primary  system  the  people  of  a  city,  in  framing 
and  adopting  a  charter,  could  not  be  regarded  as  within  the  mean- 
ing of  the  term  " legislature"  as  employed  by  the  constitution. 
Otherwise  it  would  result  that  the  city  could  "provide  for  the 
nomination  of  all  candidates  in  all  elections  for  state,  district, 
county,  and  municipal  officers" ;  and  this  would  be  to  recognize 
the  competence  of  a  home  rule  city  "to  legislate  not  only  upon 
purely  municipal  matters,  but  also  upon  purely  state  matters." 
In  other  words,  although  the  regulation  of  municipal  elections  was 
strictly  a  local  affair,  yet  because  of  an  express  declaration  of  the 
constitution  the  regulation  of  municipal  nominations  was  taken 
out  of  the  hands  of  home  rule  cities  and  vested  in  the  state  legis- 
lature. This  ridiculous  situation  obviously  resulted  from  the  care- 
lessness of  the  framers  of  the  constitution. 

In  this  case  it  was  unnecessary  to  decide  whether  failure  to 
comply  with  the  primary  election  law  of  1909,1  so  far  as  it  regu- 
lated nominations  of  candidates  for  municipal  offices,  operated  to 
invalidate  the  election  held  under  the  non-partisan  system  pro- 
vided in  the  charter. 


Does  a  State  Law   control  a  Charter  Provision  on  the  Subject  of 

Education  ? 

In  the  charter  of  the  city  of  Ardmore,  adopted  in  1908,  provi- 
sion was  made  for  the  election  of  a  board  of  education  which 
should  constitute  a  corporation  separate  and  distinct  from  the 
city  proper  and  which  should  be  vested  with  title  to  all  school 
property  and  with  the  power  exclusively  to  control  and  manage 
the  public  schools.  This  provision  of  the  charter  was  in  direct 
conflict  with  the  general  laws  of  the  state  which  provided  a  board 
of  education  for  a  school  district  that  included  the  city.  In  the 

» Laws  of  Okla.,  1909,  ch.  16. 


586     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

case  of  the  Board  of  Education  of  the  City  of  Ardmore  v.  State 
ex  rel.  Best 1  it  was  held  that  the  charter  provisions  upon  this 
subject  were  utterly  void  not  only  on  the  ground  that  they  were 
in  conflict  with  a  controlling  state  law  but  also  on  the  ground  that 
it  was  beyond  the  competence  of  a  home  rule  city  to  regulate 
"this  important  function  of  government."  Reference  was  made 
to  the  article  of  the  constitution  2  which  was  devoted  to  the  sub- 
ject of  education  and  in  which  many  duties  were  imposed  upon 
the  legislature  with  respect  to  the  establishment  and  maintenance 
of  a  "system"  of  public  schools.  Reliance  was  placed  also  upon 
the  opinions  expressed  in  certain  cases  from  the  California  juris- 
diction.3 Upon  the  basis  of  these  it  was  argued  that  the  word 
"system"  as  used  in  the  constitution  imported  a  "unity  of  pur- 
pose" and  an  "entirety  of  operation"  which  withdrew  the  control 
over  matters  pertaining  to  education  from  the  scope  of  powers 
embraced  within  the  right  to  frame  a  charter. 

While  this  case  was  pending  before  the  court,  or  immediately 
after  its  decision,  the  legislature  enacted  a  law 4  which  was  in  the 
nature  of  a  supplement  to  the  so-called  enabling  act.  This  law 
conferred  upon  cities  framing  their  own  charters  the  authority  to 
fix  the  number  and  terms  of  office  of  members  of  boards  of  educa- 
tion, to  regulate  the  time  and  manner  of  their  election,  and  to 
enlarge  the  jurisdiction  of  such  boards  of  education  by  attaching, 
for  the  purpose  of  the  administration  of  education,  territory  adja- 
cent to  the  corporate  limits  of  the  city.  The  residents  of  the 
territory  so  attached  were  to  participate  in  the  election  of  the 
members  of  the  board  of  education. 

In  Cotteral  v.  Barker  5  question  was  raised  as  to  the  validity  of 
certain  provisions  of  the  charter  of  Guthrie  which  were  in  sub- 
stantial harmony  with  this  statute.  The  real  issue  before  the 
court  was  as  to  the  competence  of  the  legislature  to  enact  a  law 
conferring  such  powers  upon  home  rule  cities.  The  court  held  in 

i  26  Okla.  366.     1910.  2  Art.  XIII. 

8  Kennedy  v.  Miller,  97  Cal.  429 ;  supra,  295  ;  Hancock  v.  Board  of  Education, 
140  Cal.  554 ;  supra,  300  ;  Los  Angeles  City  School  District  v.  Longden,  148  Cal. 
380;  supra,  303. 

*  Laws  of  Okla.,  1910,  p.  238.  »  34  Qkla.  533.     1912. 


HOME  RULE  IN  OKLAHOMA  587 

effect  that  the  statute  did  not  violate  either  the  letter  or  the  spirit 
of  any  constitutional  provision  imposing  an  obligation  upon  the 
legislature  in  respect  to  the  public  school  system  and  that  the 
statute  certainly  could  not  be  struck  down  as  an  unauthorized 
delegation  of  legislative  power  in  so  far  as  it  extended  to  cities 
under  freeholders'  charters  merely  the  right  to  regulate  the  number, 
the  terms  of  office,  and  the  time  and  manner  of  electing  members 
of  boards  of  education.  The  statute,  however,  also  conferred 
upon  the  city  exterritorial  jurisdiction ;  for  although  the  residents 
of  any  attached  territory  were  to  participate  in  the  election  of  the 
members  of  the  board,  they  were  given  no  voice  in  the  determina- 
tion of  certain  matters  in  respect  to  the  constitution  of  the  boards. 
These  matters  were  subject  to  regulation  by  the  home  rule  charter 
of  the  city,  and  in  the  adoption  of  this  charter  non-residents  could 
not  participate.  On  this  point  the  court  declared  as  follows : 

It  has  already  been  stated  that  the  school  district  involved  embraces 
the  whole  of  the  city  of  Guthrie,  as  well  as  certain  attached  territory  and 
people ;  and  it  is  urged  vigorously  that  the  effect  of  this  act  is  to  enable 
the  city  proper  to  legislate  for  those  persons  residing  outside  of  the  city, 
but  constituting  a  part  of  the  school  district,  and  that  this  is  a  delegation 
to  the  municipality  of  the  right  to  legislate  for  persons  not  residing  therein ; 
and  this  is  true  to  a  certain  extent.  This  charter  provides  for  the  election 
At  large  of  the  members  of  the  board  of  education  and  all  those  persons 
residing  upon  the  attached  territory  are  permitted  to  vote  in  the  election. 
Instead  of  having  two  members  of  the  board  elected  by  the  attached  ter- 
ritory, those  persons  therein  residing  participate  in  the  election  of  all  six 
members  of  the  board.  The  city,  in  framing  the  charter  for  its  own 
government,  incidentally  operates  upon  those  persons  not  living  in  the 
city,  but  who  form  a  part  of  its  school  district.  In  passing  upon  the  con- 
stitutionality of  a  law  enacted  by  the  Legislature,  which  is  a  co-ordinate 
department  of  the  government,  the  courts  should  resolve  every  doubt  in 
favor  of  the  validity  of  the  law,  and  technical  refinements,  not  affecting 
substantial  rights,  should  not  be  pressed  to  the  extent  of  defeating  the 
will  of  the  people.  The  school  district  is,  of  course,  a  separate  entity 
from  the  city;  but,  while  this  is  true,  it  is  composed,  to  a  very  great 
extent,  of  the  same  people  and  of  the  same  property ;  and,  while  it  may 
be  true  that  a  city  cannot  be  given  the  power  to  legislate  for  a  county, 
or  for  the  remainder  of  the  state,  where,  as  in  this  case,  the  school  district 
lines  have  been  extended  by  the  consent  of  the  city  and  of  the  persons 
jesiding  in  the  attached  property,  we  do  not  think  that  the  power  of  the 


588  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Legislature  to  permit  the  city  to  devise  this  manner  of  electing  a  school 
board  should  be  destroyed,  because  it  incidentally  affects  this  property 
which  has  been  attached  by  mutual  consent,  where,  as  in  this  case,  those 
persons  so  attached  are  given  full  power  of  participation  in  the  election 
of  the  members  of  the  board  of  education. 

There  was  certainly  a  considerable  measure  of  liberality  in  the 
view  thus  taken  by  the  court.  It  is  worthy  of  remark  in  conclu- 
sion, however,  that  while  the  decision  of  the  Cotteral  case  was 
certainly  somewhat  out  of  harmony  with  the  views  expressed  in 
the  Ardmore  case  respecting  the  " unity  of  purpose"  and  the 
" entirety  of  operation"  which  were  contemplated  by  the  term 
"system"  as  used  in  the  constitution,  the  later  case  did  not  in 
fact  overrule  the  earlier.  The  power  of  the  home  rule  city  of 
Oklahoma  to  control  matters  pertaining  to  public  education  is 
referable  to  statutory  and  not  to  constitutional  grant. 

It  is  probable  that  many  other  points  in  respect  to  the  relation 
of  state  laws  to  charter  provisions  and  in  respect  to  the  scope  of 
powers  embraced  within  the  grant  to  the  city  of  authority  to  frame 
and  adopt  a  charter  will  arise  in  Oklahoma  in  the  course  of  time. 
Certainly  it  cannot  be  said  that  the  amount  of  litigation  involving 
questions  of  this  character  has  been  small  when  it  is  considered 
that  the  system  has  been  in  operation  for  a  comparatively  short 
time.  The  court  has  laid  down  the  general  rule  that  the  laws 
which  home  rule  charters  must  be  "  consistent  with  and  subject 
to"  are  laws  relating  to  matters  of  general  as  distinguished  from 
local  concern.  As  we  have  had  frequent  occasion  to  note,  this  is 
a  rule  which  is  exceedingly  difficult  and  in  some  instances  well- 
nigh  impossible  to  apply ;  but  in  applying  it  the  Oklahoma  court 
unquestionably  rescued,  just  as  the  Missouri  court  ultimately  did, 
a  considerable  measure  of  the  home  rule  right.  It  is  fortunate, 
to  say  the  least,  that  the  court  did  not  adopt  the  more  literal 
California  construction  of  the  original  provision  in  that  state,  nor 
the  Washington  construction,  nor  the  construction  which  has  in 
practice,  and  it  would  seem  of  constitutional  necessity,  been 
adopted  in  Minnesota.  It  is  none  the  less  regrettable  that  any 


HOME  RULE  IN  ARIZONA  589 

court,  in  an  effort  to  effectuate  the  probable  spirit  of  a  provision 
of  the  fundamental  law  and  to  read  coherence  out  of  incoherence, 
should  be  compelled  by  the  makers  of  that  law  to  ignore  or  to  slur 
the  plain  meaning  of  terms. 

Home  Rule  in  Arizona 

The  constitution  with  which  Arizona  was  admitted  to  the  Union 
in  the  year  1912  contained  a  provision  1  which  conferred  upon  cities 
the  power  to  frame  their  own  charters  in  substantially  the  same 
terms  as  the  provision  of  the  Oklahoma  constitution.2  Aside  from 
a  few  insignificant  variations  in  phraseology  the  only  differences 
of  even  a  fairly  material  character  were  that  (1)  the  authority 
to  frame  a  charter  was  in  Arizona  extended  to  cities  of  more  than 
3500  inhabitants  instead  of  2000  inhabitants  as  in  Oklahoma,  and 
(2)  the  board  of  freeholders  was  to  be  composed  of  fourteen  elec- 
tors chosen  at  large  instead  of  two  from  each  ward  as  in  Oklahoma. 
In  view  of  the  practical  identity  of  the  constitutional  provisions 
of  these  states  upon  this  subject  it  seems  unnecessary  to  set  forth 
the  Arizona  provision  in  detail. 

According  to  the  census  of  1910  there  were  in  Arizona  only 
eight  cities  which  fulfilled  the  population  requirement  for  the 
exercise  of  home  rule  powers.  Of  these  Tucson  with  a  population 
of  a  little  over  13,000  was  the  largest.  Phoenix  with  a  population 
of  11,000  was  the  second  city  of  the  state.  This  latter  city  was 
the  only  city  which  within  the  first  two  years  of  the  operation  of 
the  home  rule  provision  availed  itself  of  the  power  to  frame  and 
adopt  a  charter  for  its  own  government. 

This  home  rule  charter  has  been  in  operation  only  since  April, 
1914.  It  is  not  surprising,  therefore,  that  the  Arizona  courts  have 
not  as  yet  been  called  upon  to  give  the  bent  of  judicial  interpreta- 
tion to  any  phase  of  the  provision  in  question.  It  may  be  re- 
marked, however,  that  the  first  legislature  which  assembled  in 
Arizona  after  the  admission  of  the  state  enacted  a  home  rule 
statute  or  " enabling  act"  which  was  practically  identical  with 

1  Art.  XIII,  sees.  1-6.  *  Supra,  558-560. 


590  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  similar  act  passed  by  the  Oklahoma  legislature.1  This  statute 
did  little  more  than  to  elaborate  the  constitutional  grant  of  power 
to  acquire  public  utilities2  and  to  determine  certain  matters  in 
respect  to  possible  conflicts  between  charter  provisions  and  general 
laws  of  the  state.3  Considering  the  fact  that  both  the  constitu- 
tional convention  and  the  legislature  of  Arizona  looked  almost 
wholly  to  the  state  of  Oklahoma  for  guidance  in  this  matter,  it 
is  perhaps  reasonable  to  expect  that  the  courts  of  that  state  will 
likewise  defer  to  the  decisions  of  the  Oklahoma  courts  in  the  matter 
of  construing  the  provisions  of  the  constitution  when  occasion 
shall  have  arisen. 

1  Rev.  Stats,  of  Ariz.,  1913,  Title  VII,  ch.  xvi,  sees.  2033-2037. 
*  Supra,  571.  3  Supra,  575. 


\ 

CHAPTER  XVI    - 


f 


HOME  RULE  IN  OREGON  AND  MICHIGAN 

THE  constitutional  provisions  by  which  home  rule  powers  were 
conferred  upon  the  cities  of  Oregon  in  1906  and  upon  the  cities  of 
Michigan  in  1909  were  in  two  fundamental  respects  quite  dis- 
similar from  any  of  the  provisions  which  have  thus  far  been 
analyzed.  In  the  first  place,  the  provisions  in  these  two  states 
were  exceedingly  brief.  In  the  second  place,  neither  provision  at-  - 
tempted  to  establish  the  procedure  for  the  exercise  of  home  rule 
powers.  As  we  shall  see,  however,  they  were  wholly  unlike  in 
effect  ;  for  while  the/Oregon  provision  went  to  the  extreme  of  im- 
posing prohibitions  upon  the  legislature  and  of  compelling  the  cities 
of  the  state  "to  be  free,"  the  Michigan  provision  apparently 
veered  to  the  other  extreme  of  subjecting  the  home  rule  city  to  a 
large  degree  of  legislative  control  ;  and  although  under  the  legis- 
lative practice  in  the  latter  state  city  charters  have  been  subject 
to  change  only  by  the  exercise  of  the  self-governing  powers  con- 
ferred, it  is  by  no  means  certain  that  this  practice  is  a  matter  of 
constitutional  obligation  upon  the  legislature. 

Home  Rule  in  Oregon 

The  Oregon  constitution  of  1857,  following  the  provisions  of 
certain  other  constitutions  of  that  period,1  specifically  excepted 
corporations  for  municipal  purposes  from  the  requirement  that 
corporations  be  created  only  under  general  laws.2  Special  legis-  ^ 
lation  for  cities  prevailed  in  that  state  down  to  1906  when  the 
section  on  the  subject  of  enacting  laws  for  corporations  was 
amended  to  read  as  follows  :  3 

1  Supra,  66-68.  »  Art.  XI,  sec.  2.  »  Ibid. 

591 


592  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Corporations  may  be  formed  under  general  laws,  but  shall  not  be 
created  by  the  legislative  assembly  by  special  laws.  The  legislative 
assembly  shall  not  enact,  amend,  or  repeal  any  charter  or  act  of  incorpora- 
tion for  any  municipality,  city,  or  town.  The  legal  voters  of  every  city 
and  town  are  hereby  granted  power  to  enact  and  amend  their  municipal 
charter,  subject  to  the  constitution  and  criminal  laws  of  the  State  of 
Oregon. 

In  1910  this  section  was  further  amended  by  adding  the  follow- 
ing clause : 

The  exclusive  power  to  license,  regulate,  control,  or  to  suppress  or  pro- 
hibit, the  sale  of  intoxicating  liquors  therein  is  vested  in  such  municipality ; 
but  such  municipality  shall  within  its  limits  be  subject  to  the  provisions 
of  the  local  option  law  of  the  state  of  Oregon. 

On  the  very  face  of  its  recitals  this -constitutional  provision  is 
pregnant  with  ambiguities  and  omissions.  In  the  first  place,  it 
appears  to  provide  no  means  whatever  by  which  a  new  municipal 
corporation  may  be  brought  into  existence.  It  is  scarcely  to  be 
imagined  that  the  people  of  any  unorganized  community  could  of 
their  own  action  and  without  regard  to  any  legal  forms  or  fixed 
procedure  organize  themselves  into  an  incorporated  city.  Yet  in 
the  second  sentence  of  the  section  it  is  expressly  declared  that 
"the  legislative  assembly  shall  not  enact  .  .  .  any  ...  act  of 
incorporation  for  any  municipality. "  This  restriction  is  not 
qualified  by  the  word  "special."  Surely  a  general  law  is  none  the 
less,  by  reason  of  its  generality,  "an  act  of  incorporation"  for  a 
city  which  becomes  organized  under  its  provisions.  Literally 
construed  this  provision  would  seem  to  prohibit  the  Oregon  legis- 
lature from  enacting  even  a  general  act  for  the  incorporation  of  new 
cities.  There  has  apparently  been  no  necessity  as  yet  for  the  Oregon 
courts  to  decide  whether  or  not  this  is  a  correct  interpretation  of 
the  constitution  upon  this  point. 

Of  more  importance,  perhaps,  is  the  consideration  of  this  same 
declaration  in  its  relation  to  cities  that  were  in  existence  at  the 
time  when  the  amendment  was  adopted.  For  the  most  part  such 
cities  were  operating  under  special  legislative  charters.  Did  the 
amendment  declare  that  such  charters  might  not  be  amended 


HOME  RULE  IN  OREGON  593 

even  by  a  statute  applicable  alike  to  all  cities  and  even  though  the 
statute  were  optional  in  character?  Apparently  this  is  precisely 
the  situation  created  by  the  provision,  for  such  a  law  would  un- 
questionably " amend"  the  "charter"  of  "any  municipality"  to 
which  it  applied.  In  other  words,  it  would  seem  that  the  Oregon 
legislature  is  deprived  of  competence  to  enact  any  charter  laws 
whatever,  whether  special  or  general  in  character,  and  that  the 
existing  cities  of  the  state  were  by  this  amendment  put  into  the 
vise  of  their  charters  antedating  1906,  which  vise  can  be  broken 
only  by  the  exercise  of  the  charter-making  or  charter-amending 
powers  conferred.  The  Oregon  amendment  has  not  received 
judicial  construction  in  this  regard ;  but  if  this  is  in  fact  the  situa- 
tion which  it  establishes,  it  is  sufficient  to  remark  that  it  goes  further 
than  the  home  rule  scheme  of  any  other  constitution  that  we  have 
considered.  It  not  only  confers  the  home  rule  right  but  also  in 
effect  compels  its  ultimate  exercise  by  every  city.  There  are  in 
the  state  of  Oregon  nearly  a  hundred  so-called  cities.  Less  than 
a  fifth  of  these  have  populations  of  over  twenty-five  hundred  in- 
habitants. The  overwhelming  majority  are  nothing  more  than 
hamlets.  It  seems  almost  ludicrous  that  these  insignificant  mu- 
nicipalities, most  of  which  will  doubtless  develop  but  slowly,  should 
be  not  only  permitted  but  also  positively  forced  to  make  a  choice 
between  remaining  under  a  completely  static  organic  law  and  organ- 
izing a  government  to  suit  themselves.  In  many  states  an  earnest 
struggle  has  been  carried  on  to  secure  and  establish  the  principle 
of  home  rule  as  a  legal  right.  Oregon  has  transformed  the  principle 
into  a  legal  duty  upon  the  theory  perhaps  —  if  it  be  conceded  that 
the  framers  of  this  amendment  definitely  intended  what  they 
apparently  provided  —  that  communities  like  individuals  grow 
in  capacity  for  self-government  by  the  exercise  of  self-governing 
powers. 

Strange  to  recount,  however,  the  powers  of  home  rule  have 
been  exercised  less  in  Oregon  than  in  any  other  state  in  which 
the  charter-making  power  has  been  enjoyed  by  cities  for  a 
similar  length  of  time.  This  is  due  in  part  perhaps  to  the  fact 
that  there  is  only  one  important  city  in  the  state  —  the  city 


594    THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  Portland.  Salem  with  a  population  of  14,094  ranks  sec- 
ond in  size;  and  according  to  the  census  of  1910  there  was 
no  other  city  with  a  population  that  required  five  figures  for 
its  writing. 

At  the  time  of  the  adoption  of  the  amendment  of  1906  Port- 
land was  operating  under  a  charter  which,  under  statutory  authori- 
zation,1 had  been  drafted  by  a  local  "charter  board,"  ratified  by 
the  municipal  voters  at  an  election  held  in  June,  1902,  and  passed 
by  the  legislature  without  amendment  in  1903.2  This  charter  was 
in  effect  a  home  rule  charter  by  legislative  grace.3  Under  the  home 
rule  provision  of  1906  this  charter  was  several  times  amended; 
but  in  spite  .of  a  very  considerable  amount  of  agitation  and  effort 
to  effect  a  general  revision,  it  was  not  until  May,  1913  that  the 
existing  charter  was  thoroughly  overhauled  by  the  adoption  of 
numerous  amendments  under  which  a  government  of  the  com- 
mission type  was  provided.4  In  addition  to  this  exercise  of  home 
rule  powers  by  Portland  the  small  cities  of  St.  Johns,5  Baker,6 
La  Grande,7  and  Salem 8  have  adopted  charters  or  thoroughgoing 
charter  amendments.  These  are  doubtless  the  only  instances  in 
the  state  in  which  cities  have  fundamentally  revised  their  charters 
under  the  grant  of  authority  contained  in  the  amendment,  although 
it  may  be  that  specific  charter  amendments  of  minor  import  have 
been  adopted  here  and  there  by  one  or  more  of  the  numerous 
cities  of  negligible  importance. 

1.  Procedure.  The  limited  extent  to  which  home  rule  powers 
have  been  exercised  by  the  cities  of  Oregon  may  be  ascribed  in 
considerable  measure  to  the  character  of  the  home  rule  amend- 
ment itself.  It  will  be  observed  that  the  provision  confers  upon 
"the  legal  voters  of  every  city  or  town"  the  "power  to  enact  and 

i  Act  of  Feb.  27,  1901.  2  Act  of  Jan.  23,  1903. 

3  In  this  respect  it  was  not  wholly  unique.     Numerous  charters  and  charter 
amendments  have  in  other  states  been  adopted  by  the  legislature  at  the  proposal 
of  the  city  affected.     For  example,  the  New  York  city  charter  of  1830  was  drafted 
by  a  municipal  convention,  submitted  to  a  vote  of  the  electors,  and  passed  by  the 
legislature  as  it  was  submitted  to  them. 

4  Somewhat  similar  amendments  were  defeated  at  the  polls  in  November,  1912. 
*  4872  inhabitants.  8  6742  inhabitants. 

7  4843  inhabitants.  8  14,094  inhabitants. 


HOME  RULE  IN  OREGON  595 

amend  their  municipal  charter."  Now  it  is  clear  that  the  legal 
voters  of  a  city,  whatever  may  be  the  scope  of  their  power,  can- 
not act  up  to  their  capacity  in  this  matter  unless  some  form  of 
procedure  shall  have  been  prescribed.  The  amendment  does  not 
essay  in  any  wise  to  determine  the  manner  in  which  the  legal  voters 
may  exercise  the  power  in  question ;  nor  does  it  indicate  whether 
the  legislature  or  some  corporate  authority  of  the  city  shall  pre- 
scribe the  manner  in  which  the  voters  may  exercise  this  com- 
petence. It  is  easy  enough,  of  course,  to  declare  that  the  voters 
collectively  shall  enjoy  this  or  that  power,  but  it  is  perfectly 
manifest  that  where  collective  political  action  is  contemplated 
some  legal  procedure  must  be  prescribed. 

Under  the  usual  interpretation  of  American  constitutions  it 
would  certainly  seem  that  the  legislature  of  the  state  could  claim 
the  authority  to  elaborate  by  statute  so  vague  a  provision  of  the 
constitution  as  this.  In  other  words,  it  would  seem  appropriate 
for  the  legislature  to  enact  a  law  prescribing  the  manner  in  which 
the  legal  voters  might  avail  themselves  of  the  power  conferred 
by  the  constitution.  It  is  a  fact,  nevertheless,  that  the  legisla- 
ture of  Oregon  has  never  attempted  to  enact  any  such  statute. 
To  the  extent  that  the  power  to  enact  and  amend  charters  has 
been  exercised  by  the  voters  of  any  municipality  of  the  state,  it 
has  been  exercised  through  the  institutions  of  the  initiative  and 
referendum.  At  the  same  election  at  which  the  home  rule  amend- 
ment was  adopted  another  amendment  was  ratified  which  declared 
in  part  as  follows  : l 

The  initiative  and  referendum  powers  reserved  to  the  people  by  this 
Constitution  are  hereby  further  reserved  to  the  legal  voters  of  every 
municipality  and  district,  as  to  all  local,  special,  and  municipal  legisla- 
tion, of  every  character,  in  or  for  their  respective  municipalities  and  dis- 
tricts. The  manner  of  exercising  said  powers  shall  be  prescribed  by  general 
laws,  except  that  cities  and  towns  may  provide  for  the  manner  of  exer- 
cising the  initiative  and  referendum  powers  as  to  their  municipal  legisla- 
tion. Not  more  than  ten  per  cent  of  the  legal  voters  may  be  required 
to  order  the  referendum  nor  more  than  fifteen  per  cent  to  propose  any 
measure,  by  the  initiative,  in  any  city  or  town. 

i  Art.  IV,  sec.  la. 


596    THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

If  it  be  conceded  that  these  two  amendments  were  intended  to 
have  a  special  relation  to  each  other  —  that  the  power  to  make 
and  amend  municipal  charters  was,  in  other  words,  included  within 
the  scope  of  the  power  to  enact  "all  local,  special,  and  municipal 
legislation" — it  is  nevertheless  manifest  that  a  considerable 
degree  of  vagueness  and  uncertainty  inheres  in  the  expressions 
that  were  employed.  The  manner  of  exercising  the  initiative  and 
referendum  powers  by  the  voters  of  cities  was  to  be  prescribed  by 
general  laws,  except  that  "cities"  might,  if  they  chose  to  do  so, 
regulate  this  matter  for  themselves.  At  the  time  of  the  adoption 
of  these  amendments  it  is  improbable  that  any  city  of  the  state 
was  operating  under  a  charter  containing  an  initiative  and  referen- 
dum provision.  For  example,  the  Portland  charter  of  1903  ex- 
pressly declared  that  "the  council  shall  have  and  exercise  exclu- 
sively all  legislative  powers  and  authority  of  the  city."  1  It  is 
true  that  the  amendment  of  1906  conferred  legislative  powers 
directly  upon  the  voters  to  be  exercised  through  the  institutions 
of  the  initiative  and  referendum,  but  it  also  conferred  power  upon 
cities  and  not  upon  city  councils  to  prescribe  the  manner  in  which 
the  powers  of  direct  legislation  should  be  exercised. 

In  spite  of  this  obvious  fact  the  city  council  of  Portland  enacted 
in  1907  an  ordinance  which  regulated  the  manner  in  which  the 
powers  of  initiative  and  referendum  might  be  exercised.2  All  of 
the  amendments  to  the  charter  of  the  city  which  have  been  voted 
upon  have  been  submitted  in  accordance  with  the  provisions  of  this 
ordinance.  Moreover,  the  validity  of  the  ordinance  has  ap- 
parently received  the  unqualified  sanction  of  the  supreme  court 
of  the  state.  In  the  case  of  State  ex  rel.  Duniway  v.  City  of 
Portland  3  the  court,  referring  to  the  home  rule  and  the  initia- 
tive and  referendum  amendments  and  to  this  ordinance,  expressly 
declared  that  "in  these  two  constitutional  provisions  and  in 
the  ordinance  referred  to,  we  have  complete  machinery  for 
submitting  charter  amendments  and  declaring  the  result  of  the 
vote  thereon." 

'  Sec.  72.  2  Ordinance  No.  16,311,  of  March  26,  1907. 

»  133  Pac.  62.     1913. 


HOME  RULE  IN  OREGON  597 

To  the  same  effect  precisely  was  the  decision  of  the  court  in 
State  ex  rel.  Fleck  v.  Dalles  City,1  where  an  amendment  to  the  city 
charter  proposed  by  initiative  petition  was  held  void  because  the 
common  council  had  refused  to  publish  the  proposal  in  accord- 
ance with  the  requirements  of  the  ordinance  of  1907  regulating 
the  manner  in  which  initiative  and  referendum  powers  should  be 
exercised,  and  the  advocates  of  the  measure  had  failed  to  make 
application  at  the  proper  time  for  a  mandamus  compelling  such 
publication.  "As  authorized  by  the  state  constitution,"  said  the 
court,  "the  city  by  its  constituted  authorities,  the  mayor  and 
councilmen,  prescribed  a  law  governing  the  exercise  of  the  initia- 
tive within  its  limits."  It  was  indispensable  that  the  process  by 
which  the  people  should  enact  local  legislation  should  "be  in 
accordance  with  the  formula  prescribed  by  the  people  themselves 
through  their  representatives  in  council  assembled." 

In  neither  one  of  these  cases  was  the  point  discussed  that  the 
power  to  prescribe  the  manner  in  which  direct  legislation  might 
be  enacted  was  by  the  terms  of  the  constitution  conferred  upon 
the  city  and  not  upon  the  city  council  to  be  exercised  by  ordinance.2 
It  would  not  have  been  unreasonable  perhaps  had  the  court  held 
that  the  institutions  of  the  initiative  and  referendum  could  be 
regulated  by  cities  only  when  their  charters  contained  adequate 
provisions  upon  this  subject.  This  would  have  been  tantamount 
to  the  declaration  that  no  city  operating  under  a  legislative  charter 
could  amend  such  charter  by  the  exercise  of  the  initiative  and 
referendum  powers  except  under  the  provisions  of  the  general 
laws  of  the  state  pertaining  to  the  exercise  of  such  powers.  Acting 
under  the  general  laws,  however,  there  could  be  no  question  that 
any  city  could  adopt  a  charter  amendment  regulating  the  manner 
in  which  these  powers  should  be  exercised  as  to  future  charter 
changes.  This,  it  would  seem,  would  have  been  a  wholly  reason- 
able construction  of  the  provision  of  the  constitution  here  under 
review.  Such  construction  was  not,  however,  given  by  the  court ;  * 
and  the  law  seems  to  be  that  any  city  of  Oregon,  even  though  it 
be  operating  under  a  legislative  charter  antedating  1906,  may 

1  143  Pac.  1127.  1914.       »  Supra,  259  ff.,  322  ff.,  413  ff. ;  infra,  625  ff. 


598      THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

merely  by  ordinance  provide  for  the  manner  in  which  charter 
amendments  or  a  complete  charter  may  be  adopted  through  ini- 
tiative and  referendum  action. 

In  case  of  the  failure  of  the  council  of  any  city  to  enact  such  an 
ordinance  the  general  laws  of  the  state  regulating  the  exercise  of 
initiative  and  referendum  powers  in  cities  apply  to  the  enactment 
of  charters  and  charter  amendments.  In  1907,  in  accordance  with 
the  mandate  of  the  initiative  and  referendum  provisions  of  the 
constitution,  the  legislature  of  Oregon  enacted  a  statute  elaborat- 
ing the  manner  in  which  these  powers  might  be  exercised  by  the 
voters  of  the  state.1  Certain  sections  of  this  statute  regulated  in 
detail  the  manner  in  which  the  powers  of  direct  legislation  should 
be  exercised  in  those  cities  in  which  this  matter  was  not  regulated 
by  ordinance  or  charter,  and  specific  reference  was  made  in  this 
law  to  the  enactment  of  charters  and  charter  amendments  subject 
to  its  provisions.2  It  is  to  be  noted,  therefore,  that  in  spite  of  the 
brevity  and  uncertainty  of  the  home  rule  amendment  here  under 
review  every  city  of  Oregon  has  the  machinery  available  for  the 
making  or  amending  of  its  charter. 

Whether  this  machinery,  which  is  limited  to  action  by  initia- 
tive and  referendum,  is  or  is  not  adequate  is  open  to  question. 
The  experience  of  Portland,  although  it  must  be  admitted  that 
Portland  has  not  been  heard  to  complain,  would  seem  to  indicate 
that  it  is  wholly  inadequate.  In  1911-12  four  more  or  less  different 
groups  of  persons  were  engaged  in  the  task  of  drafting  a  charter 
for  that  city.  There  was  a  committee  appointed  by  the  mayor, 
which  was  known  as  the  "official  charter  committee."  There 
was  a  " people's  charter  committee"  constituted  under  the  auspices 
of  the  East  Side  Business  Men's  Club.  There  was  another  citi- 

1  Laws  of  Ore.,  1907,  p.  405,  repealing  an  Act  of  Feb.  24,  1903. 

2  Sees.  10-12.     It  is  absurd,  of  course,  to  say  that  this  law  did  not  amend  the 
charters  of  the  cities  to  which  it  applied,  for  doubtless  the  charter  of  every  such 
city  vested  the  local  legislative  power  elsewhere  than  in  the  voters.     But  if  this 
law  is  a  legislative  amendment  it  is  nevertheless  an  amendment  that  is  expressly 
authorized  by  the  initiative  and  referendum  provision  of  the  constitution  —  a  pro- 
vision that  was  adopted  at  the  same  time  as  the  home  rule  provision  which  pro- 
hibited the  amendment  of  charters  by  the  legislature.     It  is,  therefore,  an  obvious 
exception  to  the  general  inhibition  laid  upon  the  legislature  in  this  regard. 


HOME  RULE  IN  OREGON 


599 


zens'  committee  which  framed  a  charter  known  as  the  "short 
charter."  And  there  was  finally  a  group  of  persons  who  rallied 
around  Mr.  W.  C.  Benbow  of  the  " people's  committee"  in  the 
framing  of  a  charter  which  became  popularly  known  as  the  "  Ben- 
bow  Charter."  The  city  council,  realizing  the  hopelessness  of  the 
schisms  among  the  several  citizen  groups,  finally  appointed  a 
special  committee  which  in  turn  named  nine  men  who  should 
attempt  to  consolidate  the  four  charters  drafted.  The  com- 
promise charter  thus  prepared  was  submitted  by  the  city  council 
to  the  voters  in  November,  1912.  At  the  same  election  the  advo- 
cates of  the  so-called  "short  charter"  placed  this  charter  also 
before  the  voters  through  the  medium  of  an  initiative  petition. 
Both  charters  were  defeated.  In  February,  1913  the  city  council 
again  provided  for  the  appointment  of  a  charter  committee.  Cer- 
tain compromises  among  the  several  charter  advocates  were 
effected  by  this  committee,  and  the  proposed  revision  was  ac- 
cepted by  the  people  at  an  election  held  in  May,  1913. 

These  details  are  of  interest  only  as  they  illustrate  the  chaotic 
situation  that  developed  in  Portland  as  a  result  of  the  fact  that 
no  orderly  procedure  was  provided  either  by  the  constitution  or 
by  statute  for  the  framing  of  a  charter.  Under  the  requirements 
of  the  initiative  and  referendum  amendment  it  is  probable  that  it 
is  impossible  for  any  governmental  authority  in  Oregon  to  deprive 
the  voters  of  cities  of  their  competence  to  make  and  amend  their 
own  charters  by  initiative  and  referendum  procedure.  It  is  not 
certain,  however,  that  the  legislature  could  not  enact  a  statute 
which  would  supplement  the  home  rule  amendment  by  providing 
an  orderly  procedure  (such,  for  example,  as  the  election  of  a  charter 
commission)  and  regulating  the  manner  in  which  voters  might 
proceed  to  exercise  the  home  rule  powers  conferred  upon  them. 
Nor  is  it  certain  that  a  city  itself  might  not  establish  such  pro- 
cedure by  provisions  of  its  own  charter.  Doubtless  any  provisions 
either  of  statute  or  charter  looking  to  the  accomplishment  of  this 
end  would  have  to  be  in  addition  to  and  not  in  lieu  of  the  initiative 
and  referendum  procedure.  In  view  of  the  fact  that  the  govern- 
mental authorities  of  Portland  have,  in  spite  of  their  lack  of  specific 


600     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

authority,  taken  a  very  active  part  in  the  initiation  of  charter 
revision,  it  would  seem  highly  desirable  that  a  regular  and  orderly 
procedure  in  such  matters  should  be  established  by  statute  or  by 
charter  provision. 

2.  The  scope  of  home  rule  powers.  The  limited  extent  to  which 
home  rule  powers  have  in  fact  been  exercised  by  the  cities  of  Ore- 
gon doubtless  accounts  for  the  absence  of  any  considerable  num- 
ber of  cases  adjudicating  questions  relating  to  this  subject.  Only 
one  or  two  points  have  been  judicially  determined. 

In  McKeon  v.  City  of  Portland1  the  validity  of  an  attempt  to 
annex  the  city  of  St.  Johns  to  the  city  of  Portland  was  drawn  into 
question.  In  1907  St.  Johns  adopted  a  charter  under  the  home 
rule  amendment  of  the  previous  year.  Acting  under  the  require- 
ments of  its  legislative  charter  of  1903,2  the  city  council  of  Port- 
land, having  received  the  necessary  petition,  ordered  that  the 
question  of  annexation  be  submitted  to  the  voters  of  St.  Johns  at 
the  general  election  held  in  November,  1910.  A  majority  vote 
was  cast  in  favor  of  the  proposed  annexation.  The  court  held, 
however,  that  this  attempted  annexation  was  utterly  void.  Deci- 
sion was  reached  upon  the  ground  that  while  the  home  rule  amend- 
ment empowered  the  voters  of  any  city  to  enact  or  amend  the 
charter  of  the  city  it  did  not  confer  power  upon  them  to  repeal 
that  charter  without  substitution  and  to  commit  what  the  court 
was  pleased  to  call  "municipal  suicide."  It  was  declared  that 
"  having  once  assumed  municipal  functions  and  obligations  either 
of  their  own  volition  or  at  the  behest  of  the  legislature,  under  the 
former  constitution,  the  voters  of  St.  Johns  could  never  repudiate 
them  or  lay  them  aside  except  under  sanction  of  the  whole  people 
of  the  state  in  whom  now  rests  the  power  formerly  exercised  by 
the  legislative  assembly  in  that  behalf." 

The  argument  employed  by  the  court  in  this  case  is  certainly 
open  to  grave  criticism.  It  would  seem  that  it  might  have  been 
held  with  much  force  that  the  voters  of  St.  Johns  were,  in  assent- 
ing to  annexation  to  Portland,  merely  repealing  their  own  charter 
and  adopting  the  charter  of  the  larger  city  as  their  own.  They 

1  61  Ore.  385.     1912.  »  Art.  IV  of  ch.  I. 


HOME  RULE  IN  OREGON  601 

were  expressly  empowered  by  the  home  rule  amendment  to  repeal 
one  charter  and  adopt  another.  The  reference  to  "municipal 
suicide"  appears  to  have  been  somewhat  overstrained,  for  while 
the  identity  of  the  suburban  city  as  such  would  have  been  com- 
pletely blotted  out  had  this  action  been  sustained,  yet  its  "life" 
would  simply  have  been  merged  into  the  "life"  of  the  larger 
municipality.  It  is  difficult  to  appreciate  the  propriety  of  apply- 
ing the  term  suicide  to  an  action  which  does  not  result  in  complete 
loss  of  life. 

The  situation  which  resulted  from  the  decision  in  this  case  was 
indeed  curious.  There  was  no  authority  in  the  state  of  Oregon 
that  was  competent  under  the  constitution  of  the  state  to  provide 
for  the  amalgamation  of  two  adjacent  cities  each  operating  under 
a  charter  of  its  own  making.  This  was  the  legal  situation  even 
though  every  person  in  each  municipality  might  be  enthusiastically 
in  favor  of  a  merger  of  their  governments.  It  had  to  be  met,  of 
course,  by  constitutional  amendment.  In  November,  1914  the 
voters  approved  an  amendment  upon  this  subject  which  read  as 
follows : 1 

The  Legislative  Assembly,  or  the  people  by  the  initiative,  may  enact 
a  general  law  providing  a  method  whereby  an  incorporated  city  or  town 
or  municipal  corporation  may  surrender  its  charter  and  be  merged  into 
an  adjoining  city  or  town,  provided  a  majority  of  the  electors  of  each  of 
the  incorporated  cities  or  towns  or  municipal  corporations  affected 
authorize  the  surrender  or  merger,  as  the  case  may  be. 

It  will  be  observed  that  the  McKeon  case  is  not  authority  for 
the  doctrine  that  the  regulation  of  matters  pertaining  to  the 
annexation  of  territory  is  not  within  the  scope  of  powers  conferred 
upon  the  home  rule  city.2  The  city  of  Portland  had  not  attempted 
to  regulate  the  matter  of  annexation  under  charter  provisions 
which  were  locally  made.  The  provisions  here  under  review  had 
been  enacted  by  the  legislature  in  the  charter  of  1903.  The 
question  of  the  competence  of  the  city  to  write  such  provisions  in 
its  own  charter  was  therefore  not  raised.  It  is  perhaps  worthy 
of  remark  in  passing  that  in  the  extensive  revision  effected  in  1913 

«  Art.  XI,  sec.  2a.  2  Supra,  146,  269,  333,  407,  474. 


602  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  charter  provisions  upon  this  subject  were  wisely  left  as  the 
legislature  had  written  them.  The  McKeon  case  did  not  in  any 
wise  imply  that  these  provisions  were  completely  void.  It  was 
merely  declared  that  they  could  not  apply  to  territory  included 
within  the  corporate  limits  of  a  city  operating  under  a  charter  of 
its  own  making.  In  point  of  fact  Portland  has  several  times 
since  1906  annexed  other  kinds  of  territory  under  these  charter 
provisions,  and  the  action  of  the  city  in  this  regard  has  apparently 
not  been  contested.  The  amendment  adopted  in  1914  clearly 
declares  that  the  annexation  of  one  city  to  another  is  a  matter 
that  must  be  regulated  by  general  law  and  therefore  not  by  a  char- 
ter provision  of  local  origin.  Even  so,  this  does  not  cover  the 
entire  subject  of  annexation.  The  question  as  to  whether  a  home 
rule  charter  may  provide  for  the  annexation  of  other  kinds  of  ter- 
ritory remains  yet  to  arise  and  be  judicially  answered  in  Oregon. 

In  the  case  of  State  ex  rel.  Duniway  v.  City  of  Portland  1  the 
commission  government  amendments  to  the  charter  of  that  city 
were  attacked  on  numerous  grounds.  None  of  the  contentions 
that  were  made  appears  to  have  had  any  very  sound  basis  in 
reason,  and  the  opinion  that  was  rendered  after  somewhat  hurried 
consideration  by  the  court  does  not  shed  much  light  upon  the 
home  rule  situation  in  Oregon.  One  or  two  points  may,  however, 
be  noted. 

In  1908  the  article  of  the  Oregon  constitution  which  deals  with 
suffrage  and  elections  was  so  amended  as  to  declare  that  "provi- 
sions may  be  made  by  law  for  the  voter's  direct  or  indirect  expres- 
sion of  his  first,  second,  or  additional  choices  among  the  candidates 
for  any  office."  2  Preferential  voting  was  introduced  in  Portland 
by  the  charter  revision  of  1913.  The  contention  was  made  that 
under  the  constitutional  amendment  of  1908  preferential  voting 
could  be  established  only  "by  law."  To  this  contention  the  court 
replied  that  "a  city  charter  enacted  by  the  voters  of  the  munici- 
pality is  as  much  a  law  as  if  it  were  enacted  by  the  legislature." 
It  was  also  declared  without  hesitation  that  "municipal  elections 
and  the  choice  of  municipal  officers  are  matters  of  purely  municipal 

1 133  Pac.  62  (1913)  ;  supra,  596.  *  Art.  II,  sec.  16. 


HOME  RULE  IN  OREGON 


603 


concern ;  and,  as  to  these,  the  people  of  the  city  have  ample  power 
to  legislate."  It  does  not  seem  to  have  been  a  matter  of  contest 
that  the  regulation  of  elections  was  beyond  the  competence  of  a 
home  rule  city  as  being  a  state  as  distinguished  from  a  local  affair, 
or  that  there  was  any  conflict  between  the  election  laws  of  the 
state  and  the  charter  provisions  upon  this  subject.  But  the  court 
expressed  its  opinion  with  so  little  reservation  as  to  leave  little 
doubt  concerning  the  answers  that  would  be  given  upon  these 
specific  points  should  the  occasion  present  itself. 
In  conclusion  the  court  declared  as  follows : 

We  think  the  true  test  is  this:  Could  the  Legislature  before  it  was 
deprived  of  the  power  to  enact  or  amend  charters  have  enacted  this  re- 
vision? We  are  of  the  opinion  that  it  could  have  done  so,  and  that  the 
courts  would  have  held  it  valid.  If  the  Legislature  could  lawfully  have 
done  this  before  the  amendment,  the  people  of  the  city  of  Portland  can 
do  the  same  within  its  corporate  limits  since  the  amendment. 

Voice  was  thus  given  to  the  unguarded  view  that  the  scope  of 
the  powers  of  a  city  in  framing  its  own  charter  is  coextensive 
with  the  powers  which  the  legislature  enjoyed  prior  to  the  grant 
of  home  rule  powers.  This  is  a  view  which  we  have  already  had 
occasion  to  consider.1  As  we  have  seen,  it  has  nowhere  been 
consistently  followed  and  applied  by  the  courts.  Nor  is  it  un- 
likely that  the  view  thus  expressed  may  yet  arise  to  confound  the 
courts  in  the  Oregon  jurisdiction. 

The  McKeon  and  the  Duniway  cases  are  the  only  cases  in  the 
Oregon  books  which  have  construed  the  home  rule  amendment  of 
1906.     Very  little,  therefore,  has  been  judicially  determined  in 'A 
respect  to  the  extent  of  powers  included  within  the  grant  of  au-  J, 
thority  "to  enact  and  amend"  municipal  charters.     Moreover, 
nothing  at  all  has  been  directly  settled  in  respect  to  the  relation 
of  superiority  and  subordination  between  state  laws  and  conflict- 
ing charter  provisions.     It  is  highly  significant  that  the  home  rule  ^ 
amendment  requires  merely  that  locally  made  charters  shall  be 
"subject  to  the  constitution  and  criminal  laws  of  the  state."     In 
other  words,  as  in  the  Colorado  provision,2  no  phrase  was  employed 

1  Supra,  357,  365,  367,  473,  532,  536.  8  Supra,  522. 


604     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

which  might  be  interpreted  to  require  that  state  laws  relating  to 
matters  of  state-wide  or  general  concern  should  supersede  the 
contrary  provisions  of  home  rule  charters.  It  is  idle  to  speculate 
concerning  what  may  be  the  judicial  determination  upon  this 
point  when  the  Oregon  courts  find  it  necessary  to  answer  some  of 
the  numerous  concrete  questions  of  this  character  which  have  been 
presented  in  other  states.  It  seems  safe  to  predict,  however,  that 
the  courts  will  have  no  easy  task  before  them. 

Home  Rule  in  Michigan 

The  constitution  adopted  in  Michigan  in  the  year  1908  con- 
tained the  following  brief  provisions  on  the  subject  of  home  rule  : l 

Sec.  20.  The  legislature  shall  provide  by  a  general  law  for  the  incor- 
poration of  cities,  and  by  a  general  law  for  the  incorporation  of  villages ; 
such  general  laws  shall  limit  their  rate  of  taxation  for  municipal  purposes, 
and  restrict  their  powers  of  borrowing  money  and  contracting  debts. 

Sec.  21.  Under  such  general  laws,  the  electors  of  each  city  and  village 
shall  have  power  and  authority  to  frame,  adopt  and  amend  its  charter, 
and  through  its  regularly  constituted  authority,  to  pass  laws  and  ordi- 
nances relating  to  its  municipal  concerns,  subject  to  the  constitution  and 
general  laws  of  the  state. 

The  language  of  these  sections  is  by  no  means  free  from  uncer- 
tainty. The  legislature  is  commanded2  to  enact  one  " general 
law  for  the  incorporation  of  cities"  under  which  "the  electors  of 
each  city  .  .  .  shall  have  power  and  authority  to  frame,  adopt 
and  amend  its  charter."  The  first  question  that  arises  is  this : 
Is  the  legislature,  having  fulfilled  its  duty  in  this  regard,  pro- 
hibited by  implication  from  enacting  any  other  charter  laws? 

1.  The  power  of  the  legislature  to  enact  special  city  laws.  Let 
us  first  consider  the  case  of  the  special  law.  Was  the  legisla- 
ture prohibited  from  enacting  a  special  law  applicable  to  a  city 

1  Art.  VIII. 

2  In  the  first  case  that  arose  over  this  subject  the  court  declared  that  the  provi- 
sion was  mandatory  upon  the  legislature ;   but,  as  in  all  such  instances,  it  is  mani- 
fest that  there  would  have  been  no  available  legal  remedy  had  the  legislature  failed 
to  obey  the  mandate  of  the  constitution. 


HOME  RULE  IN  MICHIGAN  605 

which  had  not  elected  to  exercise  home  rule  powers  under  the 
terms  of  the  statute  contemplated  by  this  provision  of  the  consti- 
tution? Such  special  acts  were  certainly  not  expressly  forbidden. 
On  the  contrary,  the  constitution  in  another  connection  declared 
that  the  "legislature  shall  pass  no  local  or  special  act  in  any  case 
where  a  general  act  can  be  made  applicable,  and  whether  a  general 
act  can  be  made  applicable  shall  be  a  judicial  question;"  and 
further  that  no  such  "local  or  special  act  shall  take  effect  until 
approved  by  a  majority  of  the  electors  voting  thereon  in  the  dis- 
trict to  be  affected."  1  What,  then,  was  the  relation  between  this 
declaration  and  the  provision  which  required  the  enactment  of  a 
general  law  for  the  incorporation  of  cities? 

The  Michigan  legislature  certainly  did  not  construe  these  pro- 
visions of  the  constitution  as  imposing  an  absolute  prohibition 
upon  the  passage  of  special  laws  relating  to  cities.  In  the  first 
session  of  the  legislature  following  the  adoption  of  the  constitution 
special  acts  were  passed  amending  the  charter  of  Grand  Rapids  in 
respect  to  "dock,  safety,  sanitary,  and  building  lines"  and  chang- 
ing the  name  of  the  city  of  Bad  Axe.2  Both  of  these  acts  were 
submitted  to  a  referendum.  In  the  legislative  session  of  1911 
nine  such  local  acts  were  passed,  all  of  them  being  subject  to  local 
approval.3 

One  of  these,  which  amended  the  charter  of  Detroit  by  raising 
the  debt  limit  from  two  to  three  per  centum,  was  promptly  haled 
before  the  courts.  In  Attorney  General  ex  rel.  McRae  v.  Thomp- 
son 4  the  court  declared  that  the  constitution  of  1909  had  sought 
to  remedy  the  "growing  evil"  of  special  legislation  for  cities  by 
the  provisions  conferring  home  rule  powers ;  and  that  this  was  a 
"palpable  attempt  to  amend  the  charter  in  violation  of  the  con- 

1  Art.  V,  sec.  30. 

*  Local  Acts  of  Mich.,  1909,  Nos.  323  and  325. 

3  Local  Acts  of  Mich.,  1909,  pp.  7-25.  Three  of  these  amended  the  charter  of 
Detroit  in  respect  to  bond  issues,  the  debt  limit,  and  the  compensation  of  alder- 
men ;  three  of  them,  one  of  which  amended  the  charter  of  Grand  Rapids,  related 
to  school  matters ;  one  related  to  building  districts ;  another  made  the  mayor  of 
a  city  ex-officio  member  of  the  county  board  of  supervisors ;  another  changed  the 
boundaries  of  a  city.  4 168  Mich.  511.  1912. 


606     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

stitutional  inhibition."  It  was  apparently  the  view  of  the  court, 
although  the  poin-t  was  not  clearly  brought  out  in  the  discussion, 
that  the  inhibition  thus  referred  to  was  implied  in  the  requirement 
that  the  legislature  should  enact  "a  general  law  for  the  incorpora- 
tion of  cities  "  under  which  cities  might  frame  and  adopt  charters  ; 
for  it  was  argued  that  the  only  "suggestion  of  justification"  for 
this  violation  of  the  inhibition  in  question  was  found  in  the  above 
quoted  provision  relating  to  the  enactment  of  local  and  special 
acts,  and  that  the  act  could  not  be  sustained  under  this  provision 
since  it  could  not  seriously  be  contended  that  a  general  law  impos- 
ing a  debt  limit  on  cities  could  not  have  been  made  applicable. 

In  the  decision  of  this  case  no  satisfactory  explanation  was 
given  of  the  precise  relation  between  the  clause  of  the  constitution 
on  the  subject  of  local  and  special  legislation  and  the  clause  of  the 
same  instrument  which  conferred  home  rule  powers  subject  to 
"a  general  law  for  the  incorporation  of  cities."  It  was  clearly 
intimated  that  special  legislation  for  cities  was  impliedly  pro- 
hibited by  the  clause  requiring  a  general  law.  On  the  other 
hand,  it  was  not  declared  that  the  provision  authorizing  special 
legislation  under  certain  conditions  had  no  reference  to  laws  en- 
acted for  cities.  Literally  construed  this  provision  appeared  to 
countenance  the  enactment  of  special  laws  for  cities  (whether 
under  home  rule  or  legislative  charters)  subject  first  to  an  abso- 
lute veto  by  the  local  electors,  and  secondly  to  a  veto  by  the  courts 
on  the  ground  that  a  general  law  could  have  been  made  appli- 
cable. Of  course  these  limitations  were  so  far-reaching  in  character 
that  the  power  of  the  legislature  in  the  matter  of  special  legisla- 
tion was  enormously  circumscribed.  If  the  people  of  a  city  are 
willing  to  vote  in  favor  of  a  special  act  passed  by  the  legislature, 
it  may  well  be  asked  why  the  same  result  could  not  be  reached  in 
most  if  not  all  cases  by  the  city  itself,  acting  under  the  general 
law  passed  in  pursuance  of  the  home  rule  provision  of  the  con- 
stitution. 

Indeed  it  would  seem  that  in  its  application  to  cities  and  villages 
the  only  practical  use  of  the  special  law  enacted  under  these  severe 
limitations  would  be  to  create  some  exception  to  the  general  law 


HOME  RULE  IN  MICHIGAN  607 

under  which  all  cities  and  villages  might  exercise  charter-making 
powers.  Employed  for  such  a  purpose  as  this,  the  special  act 
would  manifestly  have  no  easy  sailing  before  the  courts,  endowed 
with  absolute  power  to  determine  whether  a  general  law  could  be 
made  applicable. 

The  probability  is  that  the  framers  of  the  Michigan  constitu- 
tion did  not  intend  that  the  provision  relating  to  local  and  special 
legislation  should  have  any  reference  at  all  to  special  legislation 
for  cities.  But  whatever  their  intention  may  have  been,  it  was 
not  clearly  written  into  the  constitution ;  and  the  ambiguity  of  that 
instrument  yet  remains  to  be  completely  resolved  by  the  courts. 

It  should  be  remarked  that  in  the  year  following  the  decision 
of  the  Thompson  case  the  legislature  enacted  a  special  law  (which 
clearly  became  a  part  of  the  city  charter  although  it  was  not  so 
enacted)  creating  a  bridge  commission  for  Bay  City  and  another 
law  amending  the  charter  of  Mackinac  Island  in  respect  to  the 
duties  of  the  mayor  and  the  treasurer.1  Such  acts,  however,  have 
not  in  any  case  been  numerous  since  the  adoption  of  the  constitu- 
tion in  1908 ;  nor  is  it  certain  that  all  of  them  were  ratified  at  the 
polls. 

2.  The  power  of  the  legislature  to  restrict  the  powers  of  home  rule 
cities  by  a  general  law.  Let  us  next  consider  whether  the  Michigan 
constitution  prohibits  the  enactment  of  general  laws  applicable 
only  to  those  cities  which  do  not  elect  to  exercise  home  rule 
powers.  There  is  here  again  no  express  prohibition  against  such 
legislation.  Such  a  prohibition,  however,  seems  fairly  implied 
in  the  mandate  of  "a  general  law  for  the  incorporation  of  cities," 
under  the  terms  of  which  cities  may  exercise  charter-making 
powers.  Doubtless  this  positive  requirement  may  be  fairly  con- 
strued to  exclude  the  enactment  of  any  other  general  laws  for 
cities,  even  though  such  laws  be  made  to  apply  only  to  cities  which 
fail  to  exercise  home  rule  powers  and  even  though  they  be 
optional  in  character.  For  example,  it  is  probable  that  an  optional 
commission  government  act  would  be  void.  The  Michigan  courts 
have  never  had  occasion  to  declare  for  or  against  this  interpreta- 

i  Local  Acts  of  Mich.,  1913,  nos.  416  and  417. 


608      THE   LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tion  of  the  constitutional  point  in  question  for  the  reason  that 
the  legislature  has  not  as  yet  attempted  to  enact  general  laws 
of  the  character  indicated. 

There  remains  to  be  considered,  then,  only  the  possibilities  for 
legislative  control  of  cities  through  the  medium  of  the  "general 
law  for  the  incorporation  of  cities,"  which  law  must  provide  for 
the  exercise  of  home  rule  powers.  Several  points  may  be  noted. 

In  the  first  place,  "a  law  for  the  incorporation  of  cities"  is  a 
comprehensive,  though  perhaps  somewhat  indefinite,  expression. 
The  Michigan  court  has  itself  declared  that  an  "act  of  incorpora- 
tion .  .  .  includes  the  idea  of  a  charter"  ; *  and  again,  that  "framing 
or  revising  the  charter  is  part  of  the  necessary  process  of  incor- 
porating a  city."  2  The  fact  is  that  a  "law  for  the  incorporation 
of  a  city"  is  an  expression  that  is  commonly  used  interchangeably 
with  the  "charter  of  a  city."  Had  the  requirement  that  the  legis- 
lature should  enact  a  law  for  the  incorporation  of  cities  been  un- 
accompanied by  any  grant  of  home  rule  powers  under  such  law, 
it  is  probable  that  both  the  legislature  and  the  courts  would  have 
construed  this  provision  as  imposing  the  duty  of  enacting  a  general 
optional  or  mandatory  charter  for  all  cities  (or  perhaps  classes  of 
cities).  Here,  therefore,  was  a  manifest  obscurity  in  the  use  of 
terms.  For  how  could  the  legislature  enact  a  general  charter  law 
while  cities  were  at  the  same  time  empowered  to  frame,  adopt, 
and  amend  their  charters  under  such  law.  The  law  itself  might 
occupy  the  entire  field  of  charter  control.  How,  then,  must  this 
phrase  "law  for  the  incorporation  of  cities"  be  defined? 

It  may  be  said  that  so  far  as  concerns  the  point  here  under 
review  the  phrase  has  not  been  defined  by  the  Michigan  courts 
because  no  occasion  for  such  definition  has  arisen.  It  would  seem 
that  the  legislature  of  Michigan  might  have  enacted  a  law  for  the 
incorporation  of  cities  which  was  mandatory  upon  all  cities  and 
which  provided  in  considerable  if  not  complete  detail  for  their 
government.  In  accordance  with  the  mandate  of  the  constitu- 
tion this  law  might  have  contained  provisions  for  the  exercise  of 

1  Common  Council  of  City  of  Jackson  v.  Harrington,  160  Mich.  550.     1910. 
1  Gallup  v.  City  of  Saginaw,  170  Mich.  195.     1912. 


HOME  RULE  IN  MICHIGAN  609 

home  rule  powers ;  but  under  such  circumstances  these  provisions 
would  have  been  obviously  farcical  in  character.  Nevertheless  it 
is  difficult  to  point  out  the  ground  upon  which  the  courts  could 
have  declared  such  a  law  void. 

The  fact  is  that  the  Michigan  legislature  has  not  enacted  such 
a  law.  Nor  has  it  incorporated  into  the  law  which  was  enacted 
any  provision  that  was  mandatory  upon  cities  except  when  they 
elected  to  frame,  adopt,  or  amend  their  charters.  In  other  words, 
no  attempt  has  been  made  to  amend  the  existing  special  legisla- 
tive charters  of  the  cities  of  the  state  through  the  direct  medium 
of  this  general  law  for  the  incorporation  of  cities.  Under  the 
practice  of  the  legislature  the  charters  which  were  in  force  in  1909 
have  remained  static  except  as  they  have  been  altered  by  action 
of  the  city  itself.  This  situation,  however,  is  somewhat  different 
from  that  which  prevails  in  Oregon ; l  for  there  seems  to  be  little 
doubt  that  the  Michigan  legislature  is  fully  competent  to  include 
in  the  one  general  statute  which  it  is  commanded  to  enact  provi- 
sions of  a  mandatory  character  that  would  operate  to  amend  the 
charter  of  every  city  of  the  state,  whether  such  charter  was  of 
legislative  origin  before  1909  or  of  home  rule  origin  thereafter. 
It  remains  to  be  seen  whether  the  legislature  will  ever  attempt  to 
exercise  its  competence  in  this  regard. 

3.  The  home  ride  act  of  1909.  The  legislative  interpretation  of 
the  constitution  on  this  point  has  been  disclosed  only  in  the 
so-called  "home  rule  act"  enacted  by  the  first  legislature  which 
assembled  after  the  adoption  of  the  constitution.2  This  act  is 
worthy  of  some  analysis.  It  applied  only  to  cities  which  elected 
to  exercise  home  rule  powers.  It  not  only  prescribed  in  detail 
the  procedure  by  which  cities  might  avail  themselves  of  the 
authority  to  frame,  adopt,  and  amend  their  charters  but  it  also 
enumerated  in  considerable  detail,  first,  certain  provisions  which 
every  charter  must  contain ; 3  secondly,  certain  provisions  which 
every  such  charter  might  contain ; 4  and  thirdly,  certain  powers 
which  no  city  should  exercise.5  It  is  interesting  to  note  that 

1  Supra,  592,  593.  2  Pub.  Acts  of  Mich.,  1909,  no.  279. 

*  Sec.  3,  subdiva.  a-o.  *  Sec.  4,  subdivs.  a-t.  6  Sec.  5,  subdivs.  a-i. 


610     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

among  the  group  of  mandatory  provisions  is  the  requirement  of 
an  elected  "  mayor  who  shall  be  the  executive  head,  and  a  body 
vested  with  legislative  power,"  1  and  also  the  specific  require- 
ment of  "a  clerk,  a  treasurer,  an  assessor  or  board  of  assessors, 
and  a  board  of  review/'  which  latter  officers  may  be  either  elected 
or  appointed.  In  other  words,  the  Michigan  legislature  has 
definitely  prescribed  certain  officers  for  which  every  city  adopt- 
ing its  own  charter  must  make  provision.  Another  of  these  man- 
datory provisions  is  that  which  requires  the  regulation  by  the 
charter  of  the  "time,  manner  and  means  of  holding  elections  and 
the  registration  of  electors."  Thus  the  authority  to  control 
matters  pertaining  to  municipal  elections  is  definitely  vested  in 
the  city  by  the  legislature.  In  the  matter  of  finance  the  charter 
is  required  to  make  provision  "for  a  system  of  accounts  which 
shall  conform  to  any  uniform  system  required  by  law,"  and  the 
subjects  of  municipal  taxation  are  made  "the  same  as  for  state, 
county,  and  school  purposes  under  the  general  law." 

Among  the  provisions  which  may  be  optionally  incorporated 
into  the  locally  made  charter  are  provisions  regulating  the  sale  of 
intoxicating  liquors,  except  where  the  city  is  located  in  a  county 
in  which  such  sale  has  been  prohibited  by  a  vote  under  the  state 
local  option  law ;  provisions  imposing  punishment  for  violations 
of  local  ordinances,  except  that  the  degree  of  punishment  is  specifi- 
cally limited;  provisions  for  the  separate  incorporation  of  any 
department  of  the  city  government,  except  that  the  city  may 
not  regulate  matters  pertaining  to  the  public  schools ;  provisions 
for  the  municipal  ownership  of  public  utilities,  although  this  right 
was  in  fact  conferred  upon  cities  by  the  terms  of  the  constitution 
itself;2  provisions  for  the  initiative  and  referendum;  and  "for 

1  This  requirement  has  not  in  practice  been  regarded  as  preventing  a  city  from 
adopting  the  commission  form  of  government  although  it  would  seem  that  literally 
construed  it  might  be  held  to  necessitate  that  all  charters  should  provide  govern- 
ments of  the  mayor  and  council  type.     The  point  does  not  appear  to  have  been 
raised  before  the  Michigan  courts.     But  see  supra,  452,  476. 

2  Art.  VIII,  sees.  23,  24,  reads  as  follows : 

"Sec.  23.  Subject  to  the  provisions  of  this  Constitution,  any  city  or  village 
may  acquire,  own  and  operate,  either  within  or  without  its  corporate  limits,  public 
utilities  for  supplying  water,  light,  heat,  power  and  transportation  to  the  munici- 


HOME  RULE  IN  MICHIGAN  611 

the  enforcement  of  all  such  local  police,  sanitary,  and  other  regu- 
lations as  are  not  in  conflict  with  the  general  laws;"  and  finally 
provisions  "for  the  exercise  of  all  municipal  powers  in  the  manage- 
ment and  control  of  municipal  property  and  in  the  administration 
of  municipal  government,  whether  such  powers  are  expressly 
enumerated  or  not." 

Chief  interest,  however,  centers  in  the  powers  which,  in  addition 
to  the  above  noted  exceptions,  have  been  expressly  denied  to 
cities  that  may  elect  to  frame  their  own  charters.  Among  the 
limitations  imposed  are,  first  of  all,  an  eight  per  centum  debt 
limit  and  a  two  per  centum  tax-rate  limit.  The  city  is  also 
prohibited,  after  the  adoption  of  the  first  home  rule  charter, 
from  submitting  to  the  electors  a  charter  or  charter  amend- 
ments oftener  than  once  in  two  years ;  -  from  calling  more  than 
two  special  elections  in  one  year;  from  voluntarily  alienating 
public  property  of  specified  value  and  kinds;  from  investing 
money  in  any  business  enterprise  —  whatever  that  may  mean  — 
in  excess  of  ten  cents  per  capita;  and  from  issuing  bonds  un- 
less approved  by  three-fifths  of  the  voters  and  unless  a  sinking 
fund  be  provided. 

Another  matter  that  is  settled  in  detail  by  this  law  is  the  man- 
ner in  which  two  or  more  cities  may  be  consolidated  and  in  which 

pality  and  the  inhabitants  thereof;  and  may  also  sell  and  deliver  water,  heat, 
power  and  light  without  its  corporate  limits  to  an  amount  not  to  exceed  twenty- 
five  per  cent,  of  that  furnished  by  it  within  the  corporate  limits ;  and  may  operate 
transportation  lines  without  the  municipality  within  such  limits  as  may  be  pre- 
scribed by  law :  Provided,  that  the  right  to  own  or  operate  transportation  facilities 
shall  not  extend  to  any  city  or  village  of  less  than  twenty-five  thousand  inhabitants. 

"Sec.  24.  When  a  city  or  village  is  authorized  to  acquire  or  operate  any  public 
utility,  it  may  issue  mortgage  bonds  therefor  beyond  the  general  limit  of  bonded 
indebtedness  prescribed  by  law :  Provided,  that  such  mortgage  bonds  issued  beyond 
the  general  limit  of  bonded  indebtedness  prescribed  by  law  shall  not  impose  any 
liability  upon  such  city  or  village,  but  shall  be  secured  only  upon  the  property  and 
revenues  of  such  public  utility,  including  a  franchise  stating  the  terms  upon 
which,  in  case  of  foreclosure,  the  purchaser  may  operate  the  same,  which  franchise 
shall  in  no  case  extend  for  a  longer  period  than  twenty  years  from  the  date  of  the 
sale  of  such  utility  and  franchise  on  foreclosure." 

The  purport  of  these  sections  was  under  review  in  Attorney  General  ex  rel. 
Hudson  v.  Common  Council  of  City  of  Detroit,  164  Mich.  369  (1911)  and  in  Attor- 
ney General  ex  rel.  Barbour  v.  Lindsay,  178  Mich.  524  (1914). 


612     THE  LAW  AND  THE  PRACTICE  OF   HOME  RULE 

territory  may  be  annexed  or  detached.  This  is  not  left  to  be  regu- 
lated by  the  local  charter.1 

There  is  nothing  especially  distinctive  about  the  procedure 
that  is  required  by  this  law  for  the  making  and  amending  of  char- 
ters.2 It  follows  the  general  lines  of  the  procedure  that  is  estab- 
lished by  the  constitution  itself  in  most  of  the  other  states,  although 
it  is  worthy  of  note  perhaps  that  the  provisions  of  the  Michigan 
statute  in  this  respect  appear  to  be  drafted  with  more  precision 
and  clearness  than  most  of  the  constitutional  provisions.  Repre- 
sentation in  the  charter  commission  consists  of  one  member  from 
each  ward  and  three  members  at  large.3  Every  charter  or  amend- 
ment must  be  submitted  to  the  governor  of  the  state  for  his  ap- 
proval, but,  unlike  the  Oklahoma  and  Arizona  provisions,4  the  veto 
of  the  governor  may  be  overridden  by  a  two-thirds  vote  of  the 
charter  commission,  if  the  proposal  was  drafted  by  such  commis- 
sion, or  of  the  city  council  in  the  case  of  amendments  pro- 
posed by  that  body  or  by  petitioners. 

4-  The  extent  of  the  exercise  of  home  rule  powers  in  Michigan. 
According  to  the  census  of  1910  there  were  in  Michigan  116 
cities  which  were  entitled  to  exercise  the  home  rule  powers  con- 
ferred by  the  constitution  and  elaborated  by  the  law.  Of  course 
there  were  also  a  considerable  number  of  villages.  Of  the  cities 
of  the  state  there  were  twenty-four  with  a  population  exceeding 
10,000  inhabitants.  Detroit  with  nearly  half  a  million  inhabit- 
ants was  the  largest  city.  Grand  Rapids  with  slightly  over  a 
hundred  thousand  inhabitants  ranked  second  in  size.  Within  a 
period  of  five  years  following  the  adoption  of  the  constitution  of 
1908  neither  of  these  cities  had  adopted  a  charter  of  its  own 
making.  Proposed  charters  were  defeated  in  Grand  Rapids  in 
1912  and  in  Detroit  in  1914.  Charters  were  also  rejected  at  the 

1  The  legislature  has  enacted  at  least  one  special  law  changing  municipal  boun- 
daries.    Supra,  605,  n.  3. 

2  Supra,  116,  117. 

3  The  act  requires  that  every  home  rule  charter  shall  provide  "for  the  establish- 
ment of  one  or  more  wards."     It  would  seem  that  if  any  city  in  effect  abolished  ward 
lines  by  establishing  only  one  ward,  its  future  charter  commissions  would  consist 
of  only  four  members.  4  Supra,  560  ff.,  589. 


HOME  RULE  IN  MICHIGAN  613 

polls  in  a  number  of  other  cities;  but  charters  were  adopted  or 
fundamental  charter  revision  made  in  sixteen  cities  during  this 
five-year  period.  The  most  important  of  these  were  Saginaw, 
Lansing,  Jackson,  Battle  Creek,  and  Port  Huron.1  In  addition 
to  these  instances  of  general  charter  revision,  existing  legislative 
charters  were  amended  in  a  number  of  cities,  including  Detroit, 
Grand  Rapids,  and  Kalamazoo;  but  as  we  shall  have  occasion 
to  note  all  such  amendments  adopted  prior  to  November,  1912 
were  void.2  ' 

5.  The  meaning  of  grant  of  home  rule  powers  to  the  electors  of  cities. 
Considering  the  brevity  of  the  Michigan  home  rule  provision 
and  the  practice  of  the  legislature  under  that  provision,  it  is  not 
surprising  that  the  declaration  of  the  constitution  itself  upon  this 
subject  has  not  received  much  construction  at  the  hands  of  the 
courts.  Most  of  the  cases  which  have  arisen  have  merely  con- 
strued and  applied  the  provisions  of  the  elaborate  home  rule  statute. 
However,  one  or  two  constitutional  points  have  been  determined. 

It  will  be  observed  that  the  Michigan  provision,  like  that  of 
Oregon,  confers  the  power  of  home  rule  upon  the  electors  of  each 
city,  but,  unlike  the  Oregon  provision,  subjects  the  exercise  of 

1  The  total  list  of  such  cities  with  populations  according  to  the  census  of  1910 
and  with  the  dates  upon  which  the  charters  or  general  revisions  were  approved  by 
the  governor  were  as  follows  :  Battle  Creek,  25,267,  May  3,  1913  ;  Easton  Rapids, 
less  than  2,500,  Dec.  12,  1914 ;    Grand  Haven,  5,856,  Dec.  2,  1914 ;  Holland,  10,- 
490,  July  23,  1914;  Jackson,  31,433,  Nov.  9,  1914;  Lansing,  31,229,  Sept.  25,  1912, 
amended  Apr.  23,  1913;  Manistee,  12,381,  Jan.  28,  1914,  amended  Sept.  8,  1914; 
Marquette,  11,503,  Dec.  29, 1913  ;  Monroe,  6,893,  Dec.  23, 1913  ;  Owosso,  9,639,  Nov. 

12,  1913  ;  Pontiac,  14,532,  Feb.  8,  1911 ;  Port  Huron,  18,863,  Nov.  9,  1910,  amended 
Apr.  21,  1914;  Saginaw,  50,510,  Nov.  19,  1914;  Three  Rivers,  5,072,  May  2,  1913; 
Traverse  City,  12,115,  Mar.  15,  1913;  Wyandotte,  8,287,  Mar.  18,  1911. 

2  Amendments  were  adopted  in  the  following  cities  and  approved  by  the  gover- 
nor on  the  dates  indicated:    Ann  Arbor,  14,817,  Nov.  23,  1910  (void),  Dec.   22, 
1911  (void),  Oct.  2,  1913;   Cadillac,  8,375,  Dec.  2,  1914;   Cheboygan,  6,859,  Apr. 

13,  1914;    Detroit,  465,766,  Dec.  6,   1910  (void),  May  3,  1913,  Nov.  14,  1914; 
Fremont,  less  than  2,500,  Mar.  28,  1912  (void) ;  Grand  Rapids,  112,571,  May  12, 
1913  ;  Holland,  10,490,  Dec.  28,  1910  (void),  May  5,  1914;  Ironwood,  12,821,  July 
22,  1910  (void)  ;    Kalamazoo,  39,437,  May  7,  1914,  Nov.  25,  1914 ;    Marquette, 
11,503,  Apr.  11,  1910  (void)  ;   Muskegon,  24,062,  Apr.  23,  1914;   Saginaw,  50,510. 
July  18,   1910  (void),  Apr.  21,   1913;    South  Haven,  3,577,  Mar.  13,  1915;    St. 
Joseph,  5,936,  Apr.  3,  1914 ;   Ypsilanti,  6,230,  May  9,  1913. 


614  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

such  power  to  the  general  law  which  the  legislature  was  com- 
manded to  enact.  In  other  words,  it  was  the  electors  themselves 
who  should  have  the  power  to  frame,  adopt,  and  amend  the  charter 
of  their  city.  Obviously  this  was  a  somewhat  vague  declaration. 
Was  the  legislature,  in  the  enactment  of  the  general  mandatory 
law,  prohibited  from  vesting  the  power  to  frame  a  charter  or  amend- 
ment in  any  other  than  the  entire  body  of  electors  ?  In  Common 
Council  of  City  of  Jackson  v.  Harrington  1  the  court,  referring  to 
the  home  rule  statute  of  the  year  before,  in  which  provision  was 
made  for  the  election  of  a  charter  commission  endowed  with  power 
to  draft  a  charter,  declared  that  in  enacting  this  law  the  legisla- 
ture "  intended  to  and  did  pass  a  general  law  giving  to  the  electors 
of  cities  the  power  to  frame,  adopt  and  amend  charters."  The 
point  was  not  specifically  discussed  that  this  act  vested  the  power 
to  frame  a  charter  in  an  elected  commission  and  not  in  the  electors 
themselves.  But  it  was  obviously  the  view  of  the  court  that  the 
statute  satisfied  the  requirements  of  the  constitution  in  this  respect. 

In  Attorney  General  ex  rel.  Hudson  v.  Common  Council  of  City 
of  Detroit 2  one  of  the  specific  contentions  made  was  that  the 
home  rule  statute,  in  providing  for  the  initiation  of  charter  amend- 
ments by  a  petition  of  voters  or  by  the  legislative  authority  of 
the  city,  was  void  because  such  provision  deprived  the  electors  of 
their  constitutional  right  to  "frame"  charter  amendments.  The 
court  said  that  there  was  "nothing  in  the  new  provision  to  indi- 
cate that  it  was  contemplated  that  the  whole  body  of  the  electors 
in  a  city  like  Detroit  should  convene  for  the  purpose  of  framing 
an  amendment,  as  a  strict  construction  of  the  language  might  re- 
quire." This  would  be  impracticable.  "Some  indirect  means 
must  be  adopted,"  and  the  means  adopted  by  the  legislature  com- 
pletely satisfied  the  constitution.  This  was  certainly  a  practical 
and  doubtless  also  a  wholly  reasonable  interpretation  of  the  some- 
what uncertain  use  of  the  term  "electors"  in  the  constitutional 
provision  in  question. 

6.  The  power  of  the  city  to  amend  an  existing  legislative  charter. 
Of  more  importance  in  the  case  last  mentioned  was  the  question 

1 160  Mich.  550.  1910.  »  164  Mich.  369.  1911. 


HOME  RULE  IN  MICHIGAN  615 

which  was  raised  as  to  whether  the  home  rule  statute  of  1909  per- 
mitted a  city  to  adopt  an  amendment  to  an  existing  legislative 
charter  without  having  first  adopted  a  home  rule  charter  proposed 
by  a  locally  elected  commission.  It  was  held  that  the  act  of  1909 
did  not  confer  such  power  upon  the  cities  of  the  state  but  that 
the  charter  amendments  provided  for  in  that  act  were  amendments 
which  might  be  made  after  a  "new  charter  or  general  revision 
equivalent  thereto"  had  been  framed  and  adopted  under  the  pro- 
visions of  the  act.  "This  construction,"  said  the  court,  "is  in 
harmony  with  the  letter  and  spirit  of  the  constitution."  Atten- 
tion was  called  to  the  language  of  the  constitution  upon  this 
point  and  it  was  expressly  declared  that  "the  authority  'to 
frame,  adopt  and  amend  its  charter'  naturally  refers  to  author- 
ized amendment  to  a  charter  framed  and  adopted  'under  such 
general  laws.'" 

In  spite  of  the  apparent  view  of  the  court  that  the  constitution 
itself  prohibited  the  granting  of  power  to  cities  to  amend  their 
existing  legislative  charters,  the  legislature  of  the  state  proceeded 
to  amend  the  home  rule  statute  so  as  expressly  to  confer  this 
power.1  In  Attorney  General  ex  rel.  Vernor  v.  Common  Council 
of  the  City  of  Detroit 2  the  court  reiterated  the  view  expressed  in 
the  Hudson  case  and  held  that  it  was  beyond  the  competence  of 
the  legislature  to  confer  such  power  upon  the  cities  of  the  state. 
The  opinion  of  the  court  seemed  to  turn  upon  the  view  that  if  such 
power  were  exercised  by  cities  they  could  by  piecemeal  amend- 
ment of  their  charters  avoid  the  necessity  of  coming  within  the 
mandates  and  inhibitions  of  the  general  law  under  which  they  were 
compelled  to  exercise  home  rule  powers.  In  other  words,  it  might 
be  that  while  a  general  charter  revision  would  of  necessity  have 
to  conform  to  the  requirements  of  the  home  rule  act,  amendments 
might  be  adopted  which  would,  nevertheless,  leave  the  charter  of 
the  city  in  some  respects  repugnant  to  the  provision  of  this  general 
law.  The  effect  of  this  decision  was  unquestionably  to  render 

1  Pub.  Acts  of  Mich.,  1911,  No.  203,  sec.  21. 

2  168  Mich.  249  (1912)  ;  reaffirmed  in  Gallup  v.  City  of  Saginaw,  170  Mich.  195 
(1912). 


616     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

void  amendments  which  had  previously  been  adopted  in  a  num- 
ber of  the  cities  of  the  state.1 

The  somewhat  overstrained  fears  of  the  court  in  respect  to  the 
possible  results  of  charter  amendment  by  piecemeal  were  evidently 
not  shared  by  the  legislature  and  the  people  of  the  state;  for  at 
the  general  election  in  November,  1912  the  home  rule  provision 
of  the  constitution  was  amended  to  read  as  follows : 

SEC.  21.  Under  such  general  laws,  the  electors  of  each  city  and  village 
shall  have  power  and  authority  to  frame,  adopt  and  amend  its  own  charter, 
and  to  amend  an  existing  charter  of  the  city  or  village  heretofore  granted  or 
passed  by  the  legislature  for  the  government  of  the  city  or  village  and,  through 
its  regularly  constituted  authority,  to  pass  all  laws  and  ordinances  relating 
to  its  municipal  concerns,  subject  to  the  constitution  and  general  laws  of 
this  state. 

The  decision  of  the  supreme  court  was  thus  " recalled"  by  con- 
ferring upon  cities  the  power  to  amend  existing  legislative  charters 
without  undertaking  complete  charter  revision. 

In  this  respect  the  Michigan  home  rule  scheme  differs  funda- 
mentally from  that  established  in  all  the  other  states  except 
Oregon  and  Texas.2  In  every  other  state  the  home  rule  powers 
conferred  must  be  exercised  ab  initio  by  the  adoption  of  a  com- 
plete charter.  It  is  only  the  charter  thus  adopted  that  may  be 
thereafter  amended  by  piecemeal  process.  The  difference  between 
these  two  schemes  may  seem  slight ;  but  from  the  practical  point 
of  view  it  is  of  considerable  importance.  Arguments  of  some  force 
may  be  presented  for  and  against  each  plan.  On  the  one  hand,  it 
may  be  urged  that  there  is  little  logic  in  imposing  upon  a  city  the 
trouble  and  expense  of  drafting  and  adopting  an  entire  charter 
when  as  a  matter  of  fact  the  existing  legislative  charter,  being  on 
the  whole  a  satisfactory  instrument,  stands  in  need  of  only  one  or 
a  few  specific  amendments.  This  argument  is  especially  forceful 
perhaps  as  applied  to  the  case  of  the  small  city,  for  the  process  of 
amendment  is  always  simpler  and  less  expensive  than  the  process 
of  complete  revision.  On  the  other  hand,  it  must  be  remembered 
that  many  cities  when  they  come  into  the  possession  of  home  rule 

1  Supra,  613,  n.  2.  a  Supra,  592  ;  infra,  649. 


HOME  RULE  IN  MICHIGAN  617 

powers  find  the  source  of  their  governments  in  a  conglomeration 
of  statutes  and  amendments  that  are  generically  referred  to  as 
their  charters.  The  bulk,  the  uncertainty,  and  the  disarray  of 
such  a  charter,  and  the  complications  of  the  government  which  it 
establishes  have  in  most  instances  been  at  once  the  result  and  the 
cause  of  much  legislative  tinkering.  It  is  from  this  tinkering  that 
escape  has  been  sought  through  the  grant  of  home  rule  powers.  The 
objections  to  legislative  tinkering  have  lain  quite  as  much  in  the 
practice  itself  as  in  the  fact  that  it  had  its  seat  in  the  legislature. 
It  is  open  to  question  whether  the  mere  transference  of  the  seat 
of  the  practice  from  the  legislature  to  the  city  is  a  step  of  pro- 
found signification  in  the  interest  of  better  city  government,  the 
furtherance  of  which  is  in  final  analysis  the  chief,  if  not  the  sole, 
argument  for  home  rule.  May  it  not  be  the  part  of  wisdom  to 
compel  every  city  that  would  avail  itself  of  the  home  rule  grant 
to  take  the  complete  measure  of  the  government  established  by 
its  fundamental  law  and  to  embark  upon  its  self-governing  career 
with  an  entirely  new  instrument?  In  the  light  of  the  actual 
experience  of  home  rule  cities  it  may  certainly  be  said  that  such 
an  instrument  is  usually  briefer,  clearer,  and  more  orderly  than 
the  charter  which  it  displaces.  A  charter  so  framed  and  adopted 
does  not  usually  stand  in  need  of  amendment  on  account  of  its  chaos 
and  ambiguity;  and  certainly  when  necessity  for  amendment 
does  arise  such  amendment  may  more  intelligently  and  more  easily 
be  considered  by  the  voter  in  its  relation  to  the  charter  as  a  whole. 
Contrast,  for  example,  the  situations  in  San  Francisco  and  in 
Detroit.  The  former  city,  because  of  the  refusal  of  its  voters  to 
adopt  any  one  of  the  charters  that  were  submitted,1  was  compelled 
to  operate  under  a  complicated  legislative  charter  for  twenty  years 
following  the  grant  of  home  rule  powers  by  the  constitution.  In 
the  end  it  secured  in  1899  a  well-ordered  charter  which,  with  the 
amendments  that  were  made  down  to  1913,  covers  less  than  two 
hundred  printed  pages.  When  the  laws  constituting  the  charter 
of  Detroit  were  compiled  in  1904 2  they  filled  a  volume  of  nearly 

1  Supra,  204,  229. 

8  By  Timothy  E.  Tarnsey,  Corporation  Counsel  of  the  city. 


618     THE  LAW  AND   THE  PRACTICE  OF  HOME  RULE 

six  hundred  pages.  The  laws  relating  to  the  city  which  were 
passed  by  the  legislature  in  the  sessions  of  1905  and  1907  covered 
nearly  two  hundred  printed  pages.1  With  the  adoption  of  the 
new  constitution  in  1908  such  legislation  ceased.  But  it  is  the 
antiquated  and  complicated  government  established  by  this  absurd 
charter  —  a  compilation  in  fact  of  numerous  statutory  enactments 
through  a  long  period  of  years  —  that  Detroit,  having  failed  at  the 
polls  in  her  one  attempt  at  general  charter  revision,  has  been  patch- 
ing and  revamping  by  home  rule  amendments. 

7.  Judicial  construction  of  certain  points  in  the  home  rule  act. 
It  is  sufficient  briefly  to  enumerate  the  points  which  have  been 
determined  by  the  cases  in  which  the  provisions  of  the  Michigan 
home  rule  act  have  been  construed  and  applied.  Thus  it  has 
been  held  that  under  this  act  the  submission  to  the  voters  of  the 
question  of  having  a  general  charter  revision  may  be  initiated  either 
by  a  two-thirds  vote  of  the  legislative  body  of  the  city  or  by  a 
voters'  petition ; 2  and  it  was  strongly  intimated  that  the  legisla- 
ture could  not  have  vested  this  power  solely  in  the  legislative 
body  since  this  would  have  been  to  deprive  the  " electors"  of  their 
constitutional  "authority  to  frame,  adopt  and  amend"  the  char- 
ter.3 But  the  common  council  of  a  city,  in  ordering  a  vote  to  be 
taken  on  this  question,  was  without  power  to  prescribe  the  manner 
in  which  candidates  for  membership  in  the  charter  commission 
should  be  nominated,  since  the  home  rule  act  provided  that  "the 
nomination  and  election  of  the  members  of  such  commission 
except  as  herein  specified  [the  only  exception  being  that  the  names 
should  go  on  the  ballot  without  party  designation],  shall  be  con- 
ducted as  near  as  may  be  as  now  provided  by  law  for  the  nomina- 
tion and  election  of  city  and  ward  officers  in  the  respective  cities 
of  this  state."  A  scheme  of  non-partisan  nomination,  as  provided 
by  the  resolution  of  the  council  of  Grand  Rapids,  was  therefore 
void,  because  the  primary  law  of  the  state  recognized  party  nomina- 
tions.4 In  other  words,  the  law  created  the  situation  that  nomina- 

1  Compiled  in  1908  by  George  T.  Gaston,  City  Clerk. 

2  Common  Council  of  Jackson  v.  Harrington,  160  Mich.  550.    1910. 
1  Supra,  614. 

4  Meves  ».  Schriver,  162  Mich.  359.     1910. 


HOME  RULE  IN  MICHIGAN  619 

tions  could  be  made  by  parties  although  there  could  be  no  party 
designation  on  the  ballots. 

Again  it  has  been  held  that  where  a  city  has  voted  in  favor  of 
charter  revision  and  has,  as  the  law  required,  at  the  same  election 
chosen  a  charter  commission,  mandamus  may  issue  to  compel  the 
council,  as  also  required  by  the  law,  to  appropriate  for  the  expenses 
of  the  commission.  The  council  could  not  avoid  making  such 
appropriation  by  waiting  till  after  the  time  fixed  by  the  existing 
charter  for  the  making  of  appropriations  for  the  year.  Even  if 
the  charter  forbade  such  an  appropriation,  any  provision  that 
could  be  construed  in  this  wise  must  yield  to  the  home  rule  act.1 

The  absurd  contention  that  the  requirement  of  a  residence  of 
three  years  in  the  city  as  a  qualification  for  membership  in  a  char- 
ter commission  was  a  "test"  of  "office  or  public  trust,"  as  that 
term  was  used  in  connection  with  the  provision  of  the  constitution 
relating  to  the  oath  of  public  office  2  was,  as  might  have  been  ex- 
pected, denied  by  the  court.3 

In  a  case  decided  in  1913  4  the  home  rule  act  was  construed  as 
expressly  conferring  power  upon  a  charter  commission  to  fill  a 
vacancy  in  its  membership ;  but  having  once  made  an  appoint- 
ment to  fill  such  a  vacancy,  the  commission  was  held  to  be  with- 
out power  subsequently  to  oust  the  member  thus  appointed. 

To  sum  up,  it  may  be  said  that  it  is  difficult  to  estimate  the 
actual  extent  of  home  rule  powers  which  the  cities  of  Michigan 
enjoy  by  virtue  of  a  direct  constitutional  grant.  This  is  due  to 
the  fact  that  the  legislature  has  apparently  met  the  situation 
sought  to  be  established  by  the  constitution  without  subterfuge 
and  without  any  effort  to  test  the  measure  of  its  own  competence. 
Numerous  important  limitations,  however,  it  has  imposed  upon 
the  cities  which  elect  to  frame  and  adopt  their  own  charters  and 
numerous  additional  limitations  it  might  prescribe  if  it  cared  to 

1  Attorney  General  ex  rel.  Graves  v.  Mayor  and  Common  Council  of  the  City  of 
Adrian,  164  Mich.  143.     1910. 
1  Art.  XVI,  sec.  2. 

8  Attorney  General  ex  rel.  Selby  v.  MacDonald,  164  Mich.  590.     1911. 
4  Eikhoff  v.  Charter  Commission  of  the  City  of  Detroit,  176  Mich.  535.      1913. 


620     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

do  so.  It  seems  to  be  beyond  cavil  that  home  rule  in  Michigan 
is  a  matter  of  legislative  grace  rather  than  of  constitutional  right. 
It  remains  to  be  seen  whether  the  legislature  will  continue  to  dis- 
play a  fair  attitude  of  deference  toward  what  may  doubtless  be 
called  the  spirit  of  home  rule  as  contemplated  by  the  brief  pro- 
vision of  the  fundamental  law. 


CHAPTER  XVII 
HOME  RULE   IN  OHIO,   NEBRASKA,   AND  TEXAS 

IN  the  year  1912  the  constitutions  of  three  additional  states 
were  amended  so  as  to  provide  for  the  exercise  of  home  rule  powers. 
The  amendment  to  the  constitution  of  Ohio  was  framed  by  the 
convention  which  met  in  that  state  in  the  spring  of  that  year, 
which  convention  instead  of  drafting  an  entirely  new  constitution 
submitted  to  the  voters  of  the  state  at  an  election  held  the  third 
of  September  forty-one  separate  amendments.  The  amendments 
in  Nebraska  and  Texas  were  drafted  by  the  legislatures  of  these 
states  and  were  ratified  at  the  general  November  elections  in  1912. 

Home  Rule  in  Ohio 

The  amendment  which  was  adopted  in  Ohio  was  as  follows : 1 

Sec.  1.  Municipal  corporations  are  hereby  classified  into  cities  and 
villages.  All  such  corporations  having  a  population  of  five  thousand  or 
over  shall  be  cities;  all  others  shall  be  villages.  The  method  of  transi- 
tion from  one  class  to  the  other  shall  be  regulated  by  law. 

Sec.  2.  General  laws  shall  be  passed  to  provide  for  the  incorporation 
and  government  of  cities  and  villages ;  and  additional  laws  may  also  be 
passed  for  the  government  of  municipalities  adopting  the  same;  but  no 
such  additional  law  shall  become  operative  in  any  municipality  until  it 
shall  have  been  submitted  to  the  electors  thereof,  and  affirmed  by  a 
majority  of  those  voting  thereon,  under  regulations  to  be  established  by  law. 

Sec.  3.  Municipalities  shall  have  authority  to  exercise  all  powers  of 
local  self-government  and  to  adopt  and  enforce  within  their  limits  such 
local  police,  sanitary  and  other  similar  regulations,  as  are  not  in  conflict 
with  general  laws. 

Sec.  4.  Any  municipality  may  acquire,  construct,  own,  lease  and 
operate  within  or  without  its  corporate  limits,  any  public  utility  the 

» Art.  XVIII. 
621 


622   THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

product  or  service  of  which  is  or  is  to  be  supplied  to  the  municipality  or 
its  inhabitants,  and  may  contract  with  others  for  any  such  product  or 
service.  The  acquisition  of  any  such  public  utility  may  be  by  condem- 
nation or  otherwise,  and  a  municipality  may  acquire  thereby  the  use  of, 
or  full  title  to,  the  property  and  franchise  of  any  company  or  person 
supplying  to  the  municipality  or  its  inhabitants  the  service  or  product  of 
any  such  utility. 

Sec.  5.  Any  municipality  proceeding  to  acquire,  construct,  own,  lease 
or  operate  a  public  utility,  or  to  contract  with  any  person  or  company 
therefor,  shall  act  by  ordinance  and  no  such  ordinance  shall  take  effect 
until  after  thirty  days  from  its  passage.  If  within  said  thirty  days  a 
petition  signed  by  ten  per  centum  of  the  electors  of  the  municipality  shall 
be  filed  with  the  executive  authority  thereof  demanding  a  referendum  on 
such  ordinance  it  shall  not  take  effect  until  submitted  to  the  electors  and 
approved  by  a  majority  of  those  voting  thereon.  The  submission  of  any 
such  question  shall  be  governed  by  all  the  provisions  of  section  8  of  this  ar- 
ticle as  to  the  submission  of  the  question  of  choosing  a  charter  commission. 

Sec.  6.  Any  municipality,  owning  or  operating  a  public  utility  for  the 
purpose  of  supplying  the  service  or  product  thereof  to  the  municipality 
or  its  inhabitants,  may  also  sell  and  deliver  to  others  any  transportation 
service  of  such  utility  and  the  surplus  product  of  any  other  utility  in  an 
amount  not  exceeding  in  either  case  fifty  per  centum  of  the  total  service 
or  product  supplied  by  such  utility  within  the  municipality. 

Sec.  7.  Any  municipality  may  frame  and  adopt  or  amend  a  charter 
for  its  government  and  may,  subject  to  the  provisions  of  section  3  of  this 
article,  exercise  thereunder  all  powers  of  local  self-government. 

Sec.  8.  The  legislative  authority  of  any  city  or  village  may  by  a  two- 
thirds  vote  of  its  members,  and  upon  petition  of  ten  per  centum  of  the 
electors  shall  forthwith,  provide  by  ordinance  for  the  submission  to  the 
electors,  of  the  question,  "Shall  a  commission  be  chosen  to  frame  a  char- 
ter?" The  ordinance  providing  for  the  submission  of  such  question  shall 
require  that  it  be  submitted  to  the  electors  at  the  next  regular  municipal 
election  if  one  shall  occur  not  less  than  sixty  nor  more  than  one  hundred 
and  twenty  days  after  its  passage ;  otherwise  it  shall  provide  for  the  sub- 
mission of  the  question  at  a  special  election  to  be  called  and  held  within 
the  time  aforesaid.  The  ballot  containing  such  question  shall  bear  no 
party  designation,  and  provision  shall  be  made  thereon  for  the  election 
from  the  municipality  at  large  of  fifteen  electors  who  shall  constitute  a 
commission  to  frame  a  charter ;  provided  that  a  majority  of  the  electors 
voting  on  such  question  shall  have  voted  in  the  affirmative.  Any  charter 
so  framed  shall  be  submitted  to  the  electors  of  the  municipality  at  an 
election  to  be  held  at  a  time  fixed  by  the  charter  commission  and  within 
one  year  from  the  date  of  its  election,  provision  for  which  shall  be  made 


HOME  RULE  IN  OHIO  623 

by  the  legislative  authority  of  the  municipality  in  so  far  as  not  prescribed 
by  general  law.  Not  less  than  thirty  days  prior  to  such  election  the  clerk 
of  the  municipality  shall  mail  a  copy  of  the  proposed  charter  to  each  elec- 
tor whose  name  appears  upon  the  poll  or  registration  books  of  the  last 
regular  or  general  election  held  therein.  If  such  proposed  charter  is 
approved  by  a  majority  of  the  electors  voting  thereon  it  shall  become  the 
charter  of  such  municipality  at  the  time  fixed  therein. 

Sec.  9.  Amendments  to  any  charter  framed  and  adopted  as  herein 
provided  may  be  submitted  to  the  electors  of  a  municipality  by  a  two- 
thirds  vote  of  the  legislative  authority  thereof,  and,  upon  petitions  signed 
by  ten  per  centum  of  the  electors  of  the  municipality  setting  forth  any 
such  proposed  amendment,  shall  be  submitted  by  such  legislative  au- 
thority. The  submission  of  proposed  amendments  to  the  electors  shall 
be  governed  by  the  requirements  of  section  8  as  to  the  submission  of  the 
question  of  choosing  a  charter  commission ;  and  copies  of  proposed  amend- 
ments shall  be  mailed  to  the  electors  as  hereinbefore  provided  for  copies 
of  a  proposed  charter.  If  any  such  amendment  is  approved  by  a  ma- 
jority of  the  electors  voting  thereon,  it  shall  become  a  part  of  the  charter 
of  the  municipality.  A  copy  of  said  charter  or  any  amendment  thereto 
shall  be  certified  to  the  secretary  of  state,  within  thirty  days  after  adop- 
tion by  a  referendum  vote. 

Sec.  10.  A  municipality  appropriating  or  otherwise  acquiring  property 
for  public  use  may  in  furtherance  of  such  public  use  appropriate  or  acquire 
an  excess  over  that  actually  to  be  occupied  by  the  improvement,  and 
may  sell  such  excess  with  such  restrictions  as  shall  be  appropriate  to  pre- 
serve the  improvement  made.  Bonds  may  be  issued  to  supply  the  funds 
in  whole  or  in  part,  to  pay  for  the  excess  property  so  appropriated  or  other- 
wise acquired,  but  said  bonds  shall  be  a  lien  only  against  the  property 
so  acquired  for  the  improvement  and  excess,  and  they  shall  not  be  a 
liability  of  the  municipality  nor  be  included  in  any  limitation  of  the  bonded 
indebtedness  of  such  municipality  prescribed  by  law. 

Sec.  11.  Any  municipality  appropriating  private  property  for  a  public 
improvement  may  provide  money  therefor  in  part  by  assessments  upon 
benefited  property  not  in  excess  of  the  special  benefits  conferred  upon 
such  property  by  the  improvements.  Said  assessments,  however,  upon 
all  the  abutting,  adjacent,  and  other  property  in  the  district  benefited, 
shall  in  no  case  be  levied  for  more  than  fifty  per  centum  of  the  cost  of  such 
appropriation. 

Sec.  12.  Any  municipality  which  acquires,  constructs,  or  extends  any 
public  utility  and  desires  to  raise  money  for  such  purposes  may  issue 
mortgage  bonds  therefor  beyond  the  general  limit  of  bonded  indebtedness 
prescribed  by  law;  provided  that  such  mortgage  bonds  issued  beyond 
the  general  limit  of  bonded  indebtedness  prescribed  by  law  shall  not 


624  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

impose  any  liability  upon  such  municipality  but  shall  be  secured  only 
upon  the  property  and  revenues  of  such  public  utility,  including  a  fran- 
chise stating  the  terms  upon  which,  in  case  of  foreclosure,  the  purchaser 
may  operate  the  same,  which  franchise  shall  in  no  case  extend  for  a  longer 
period  than  twenty  years  from  the  date  of  the  sale  of  such  utility  and 
franchise  on  foreclosure. 

Sec.  13.  Laws  may  be  passed  to  limit  the  power  of  municipalities  to 
levy  taxes  and  incur  debts  for  local  purposes,  and  may  require  reports 
from  municipalities  as  to  their  financial  condition  and  transactions,  in 
such  form  as  may  be  provided  by  law,  and  may  provide  for  the  examina- 
tion of  the  vouchers,  books  and  accounts  of  all  municipal  authorities,  or 
of  public  undertakings  conducted  by  such  authorities. 

Sec.  14.  All  elections  and  submissions  of  questions  provided  for  in 
this  article  shall  be  conducted  by  the  election  authorities  prescribed  by 
general  law.  The  percentage  of  electors  required  to  sign  any  petition 
provided  for  herein  shall  be  based  upon  the  total  vote  cast  at  the  last 
preceding  general  municipal  election. 

This  amendment  to  the  Ohio  constitution  went  into  effect  on 
November  15,  1912.  At  the  time  of  its  adoption  every  one  of  the 
eighty-two  cities  of  the  state,  varying  in  population  from  five 
thousand  to  more  than  five  hundred  thousand  inhabitants,  was 
operating  under  the  general  municipal  code  of  1902  which  estab- 
lished a  uniform  system  of  government  for  all  cities.1  Almost 
immediately  a  number  of  cities  became  active  in  the  direction  of 
framing  and  submitting  charters  of  their  own  making.  Within 
a  period  of  two  years  after  the  amendment  became  effective  char- 
ters had  been  adopted  in  nine  cities  —  to  wit,  Cleveland  (July  1, 
1913),  Lakewood  (July  22,  1913),  Middletown  (Aug.  8,  1913), 
Dayton  (Aug.  12,  1913),  Springfield  (Aug.  26,  1913),  Columbus 
(May  5,  1914),  Sandusky  (July  28,  1914),  Ashtabula  (Nov.  3, 
1914),  and  Toledo  (Nov.  3,  1914).  Within  the  same  period  pro- 
posed charters  were  rejected  by  the  voters  in  six  cities  —  to  wit, 
Akron,  Canton,  Elyria,  Salem,  Youngston,  and  Cincinnati.  In 
one  city,  Lorain,  the  charter  convention,  apparently  upon  its  own 
initiative,  decided  not  to  submit  a  charter ;  while  in  a  number 2  of 

1  Supra,  73,  74. 

2  Among  these  were  Amherst,  Gallipolis,  Ironton,  Jackson,  Mansfield,  Marietta, 
Norwood,  and  Washington  Court  House. 


HOME  RULE  IN  OHIO  625 

other  cities  the  voters  declined  to  sanction  the  election  of  a  com- 
mission to  frame  a  charter.  In  other  words,  within  the  brief 
space  of  time  mentioned  more  than  one-fourth  of  the  cities  of 
Ohio,  including  practically  all  sizable  cities,  had  essayed  to  exer- 
cise the  home  rule  powers  conferred  by  the  constitution ;  but  of 
this  number  onty  nine  had  succeeded  in  adopting  charters. 

For  the  purposes  of  analysis  and  of  discussion  in  the  light  of 
certain  legal  difficulties  which  have  arisen  in  other  home  rule 
states  the  Ohio  amendment  and  the  few  cases  that  have  thus  far 
been  adjudicated  may  be  considered  under  two  main  heads. 

1 .  The  scope  of  the  city's  powers  apart  from  any  question  of  con- 
flict with  state  laws.  In  respect  to  this  phase  of  the  home  rule 
problem  it  is  manifest  upon  a  careful  reading  that  the  Ohio  pro- 
vision introduced  an  element  of  grave  uncertainty  which  has  been 
met  with  only  to  a  limited  extent  in  other  jurisdictions.  This  un- 
certainty arose  from  the  failure  of  the  amendment  to  indicate 
clearly  that  the  "powers  of  local  self-government/'  which  are  con- 
ferred broadly  upon  " municipalities"  (sec.  3),  and  the  specific 
powers  of  municipal  ownership  of  utilities  (sees.  4,  5,  and  6),  and 
of  excess  condemnation  (sec.  10)  are  to  be  exercised  only  through 
the  charter-making  power  conferred  (sees.  7  and  8).  In  other 
words,  was  it  intended  that  these  substantive  powers  of  local  self- 
government  generally,  and  of  municipal  ownership  and  excess  con- 
demnation specifically,  should  or  should  not  be  dependent  upon  the 
exercise  of  the  adjective  power  of  framing  and  adopting  a  charter? 

It  will  be  recalled  that  in  the  case  of  every  other  home  rule  pro- 
vision we  have  considered  practically  all  of  the  substantive  powers 
of  home  rule  that  were  granted  were  simply  included  within  the 
grant  of  an  apparently  adjective  power  —  the  power  to  frame  and 
adopt  a  charter  for  the  government  of  the  city.  Whatever  con- 
crete subjects-matter  were  by  reason  of  this  grant  placed  within  the 
controlling  competence  of  the  city  depended  solely  upon  the  con- 
ception of  the  scope  of  powers  that  might  be  appropriately  pro- 
vided for  by  the  "charter"  of  a  city.  There  could  be  no  question 
that  the  exercise  of  the  charter-making  power  was  the  sole  means 
by  which  a  city  could  avail  itself  of  the  self-governing  powers 


626     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

contemplated.  In  respect  to  this  matter,  then,  the  ambiguity  of 
the  Ohio  provision  was  almost  wholly  unique. 

Whether  a  city  that  is  still  operating  under  the  general  munic- 
ipal code  of  Ohio  may  exercise  the  specific  powers  of  municipal 
ownership  and  of  excess  condemnation  that  are  mentioned  in  the 
home  rule  provision,  the  Ohio  courts  have  not  yet  been  called 
upon  to  determine,  although  it  is  possible,  if  not  indeed  probable, 
that  the  right  to  exercise  such  powers  would  be  resolved  in  favor 
of  such  a  city.1  On  the  other  hand,  the  question  as  to  whether 
a  city  could  exercise  powers  beyond  the  scope  of  its  legislative 
charter  by  reference  merely  to  the  constitutional  grant  to  "mu- 
nicipalities" of  "powers  of  local  self-government"  was  the  first 
question  that  arose  under  the  home  rule  amendment. 

The  only  fact  in  this  first  case  —  The  State  ex  rel.  City  of  Toledo 
v.  Lynch 2  —  was  that  the  city,  while  still  organized  under  the 
general  code,  enacted  an  ordinance  providing  for  the  establish- 
ment of  a  motion-picture  theater  to  be  publicly  owned  and 
operated.  Was  this  ordinance  valid?  Five  out  of  six  judges 
held  that  the  ordinance  was  void.  Three  concurring  opinions 
and  one  dissenting  opinion  were  written.  Two  distinct  questions 
of  law  were  involved.  The  first  of  these  was  whether  a  city,  not 
having  framed  a  home  rule  charter,  enjoyed  any  power  of  local 
self-government  that  was  not  conferred  upon  it  by  law  —  enjoyed 
such  power,  in  other  words,  by  direct  grant  from  the  constitution. 
The  second  question  was  whether  the  power  to  own  and  operate 
a  motion-picture  theater  was  in  any  event  included  within  the 
powers  of  local  self-government.  Four  out  of  seven  judges  an- 
swered both  of  these  questions  in  the  negative ;  but  they  were 
not  the  same  groups  of  judges,  for  one  member  of  the  court  con- 

1  It  would  seem  that  the  procedure  prescribed  in  section  5  is  sufficiently  elabo- 
rate to  enable  any  city  to  enter  upon  a  policy  of  municipal  ownership  without  the 
necessity  of  making  any  alteration  in  its  charter,  although  certain  regulations  in 
respect  to  the  filing  of  a  petition  of  electors  would  doubtless  have  to  be  prescribed 
either  by  municipal  ordinance  or  state  law.  So  also  it  would  seem  that  the  power 
to  condemn  property  in  excess  of  actual  public  needs  could  be  exercised  through 
the  ordinary  machinery  for  condemnation  —  a  machinery  which  every  city  possesses. 

»88Oh.  St.  71.     1913. 


HOME  RULE  IN  OHIO  627 

curred  in  the  final  judgment  without  expressing  any  opinion  as 
to  the  latter  question,  while  another  member  rested  wholly  upon 
a  negative  answer  to  the  latter  question  and  utterly  repudiated 
the  opinion  of  the  majority  as  to  the  former.  It  is  manifest  that 
under  these  circumstances,  which  in  themselves  constitute  an  elo- 
quent commentary  upon  the  amazing  incapacity  either  of  the 
court  or  of  the  makers  of  the  constitutional  provision,  with  the 
odds  in  this  instance  overwhelmingly  in  the  court's  favor,  it  is 
somewhat  difficult  to  set  forth  briefly  what  the  "court"  as  such 
"held." 

Four  judges  J  agreed  that  the  fatal  defect  in  the  city's  contention 
lay  in  the  assumption  that  the  powers  of  local  self-government 
conferred  upon  "municipalities"  by  the  constitution  were  thereby 
conferred  upon  a  particular  agency  of  such  municipalities  —  to  wit, 
the  city  council.  The  city  had  neither  approved  any  "additional 
law" 2  granting  this  power  to  its  council  nor  framed  and  adopted  a 
charter  which  bestowed  such  power.  The  council  could  exercise 
only  such  powers  as  were  vested  in  it  by  valid  law  or  charter. 
The  council  was  not  the  municipality.  It  followed,  therefore,  that 
the  council  of  Toledo  could  not  without  specific  authority  exer- 
cise any  power  in  addition  to  the  powers  which  it  enjoyed  prior 
to  the  amendment. 

The  question  here  raised  was  practically  identical  with  that 
which  vexed  the  California  court  in  respect  to  the  direct  constitu- 
tional grant  of  the  police  power  to  cities  and  which  has  never 
been  answered  in  that  state  with  entire  consistency.3  It  may  be 
remarked  also  that  the  police  power  is  conferred  by  this  same 
section  3  of  the  Ohio  amendment  in  much  the  same  way,  although 
the  section  has  not  as  yet  been  the  subject  of  judicial  construction 
upon  this  point. 

The  decision  of  the  majority  of  the  Ohio  court  upon  this  sub- 
ject was  doubtless  justified  by  the  consideration  of  the  difficulties 

1  Shank,  C.  JM  and  Newman,  Johnson,  and  Wilkins,  J.  J.  2  Supra,  632. 

3  Supra,  322  ff.  See  also  the  discussion  of  a  somewhat  similar  question  in  con- 
nection with  the  initiative  and  referendum  provision  of  the  Oregon  constitution, 
supra,  596-598.  See  also  259  ff.,  403  ff.,  413  ff. 


628     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

into  which  a  contrary  decision  might  have  led.  If  the  city  council 
could  in  the  exercise  of  one  power  of  local  self-government  be 
regarded  as  the  municipality,  it  certainly  would  have  to  be  re- 
garded as  competent  to  exercise  all  such  powers.  However  diffi- 
cult it  may  be  to  define  the  powers  of  local  self-government,  it 
must  be  recognized  that  the  scope  of  such  powers  is  considerable. 
If  the  city  council  was  vested  broadly  with  such  powers,  so  that 
it  could  exercise  a  power  not  specifically  conferred  upon  it  by  law 
or  charter,  it  would  seem  that  in  sound  logic  it  could  also  exercise 
a  power  of  local  self-government  that  was  positively  conferred  by 
such  law  or  charter  upon  some  other  agency  of  the  municipality. 
In  other  words,  if  the  council  could  successfully  assert  its  com- 
petence to  be  considered  the  municipality  itself  within  the  mean- 
ing of  the  constitution,  it  could  actually  amend  the  charter  of  the 
city  in  respect  to  any  matter  pertaining  to  local  self-government. 
This  would  be  to  recognize  in  the  council  authority  not  only  to 
repeal  provisions  of  the  general  municipal  code,  where  a  city  was 
still  operating  under  such  code,  but  also  perhaps  to  abrogate  pro- 
visions of  a  home  rule  charter,  where  a  city  had  framed  and 
adopted  such  a  charter.1  If  it  was  the  intention  of  the  framers  of 
the  constitution  that  the  council  should  thus  exercise  complete 
powers  of  self-government  it  might  well  be  asked  why  they  incor- 
porated the  elaborate  provisions  relating  to  the  making  and 
amending  of  charters. 

It  is  obvious  that  the  interpretation  put  upon  this  wholly 
inexcusable  phraseology  of  the  Ohio  amendment  was  a  very 
serious  matter  if  the  court  desired  to  pave  the  way  for  any 
consistency  of  view.  It  was  far  more  serious  than  the  con- 
struction of  a  provision  conferring  the  police  power  upon  cities 
without  designating  the  agency  by  which  such  power  was  to  be 
exercised.  The  power  of  local  self-government  is  much  more 
comprehensive  than  the  municipal  police  power.  Moreover  the 
latter  power  is  commonly  exercised  by  ordinance  and  therefore 

1  In  the  latter  case  it  could  doubtless  be  held  that,  since  a  higher  authority  of 
the  municipality  as  such  had  spoken  through  the  medium  of  the  locally  made 
charter,  the  council  was  to  that  extent  prohibited  from  putting  itself  forward  as  the 
municipality. 


HOME  RULE  IN  OHIO  629 

chiefly  if  not  exclusively  by  the  council,  but  the  powers  of  local 
self-government  are  commonly  exercised  by  a  great  variety  of 
municipal  agencies. 

In  respect  to  the  second  question  involved  in  the  Toledo  case 
it  seems  probable  that  the  three  judges  who  concurred  in  the  view 
that  the  power  to  own  and  operate  a  motion-picture  theater  was 
not  one  of  the  powers  of  local  self-government  were  in  fact  apply- 
ing a  doctrine  which  was  closely  akin  to  that  which  asserts  that 
the  power  of  taxation  may  not  be  exercised  for  other  than  a  public 
purpose.  It  is  a  significant  fact,  however,  that  this  doctrine  was 
not  specifically  mentioned.  The  incompetence  of  the  city  to 
exercise  the  power  in  question  was  founded  upon  a  somewhat 
vague  definition  of  the  term  "self-government."  While  admitting 
that  a  " conceptual  definition"  of  this  term  was  practically  im- 
possible, the  opinion  was  nevertheless  expressed  that  a  "descrip- 
tive definition"  could  be  given.  This  so-called  descriptive  defini- 
tion of  the  powers  of  local  self-government  was  set  forth  in  the 
following  language  : 

They  are  such  powers  of  government  as  in  view  of  their  nature  and 
the  field  of  their  operation,  are  local  and  municipal  in  character.  The 
force  of  the  terms  employed  requires  the  inclusion  of  such  powers  to  be 
exercised  by  officials  who  in  some  manner  and  to  some  extent  represent 
the  sovereignty  of  the  people.  It  as  clearly  excludes  the  exercise  of  func- 
tions which  are  appropriately  exercised  by  caterers  and  impressarios. 
The  suggestion  that  moving-picture  exhibitions  might  be  made  educa- 
tional is  gratuitous  because  that  is  not  their  natural  object.  It  is  unavail- 
ing because  article  VI  of  the  Constitution  shows  that  education  supported 
by  taxation  is  to  be  conducted  by  "a  system  of  common  schools  through- 
out the  state." 

Considerable  emphasis  was  also  laid  upon  the  fact  that,  while 
the  constitution  empowered  municipalities  to  own  and  operate 
public  utilities,  it  also  imposed  certain  restrictions  upon  their 
powers  in  this  regard.  It  was  strange  indeed,  thought  the  court, 
that  the  power  to  acquire  utilities  was  surrounded  with  certain 
safeguarding  limitations  if  the  capacity  to  own  and  operate  amuse- 
ments was  to  be  regarded  as  having  been  conferred  without  restric- 
tions. It  is  interesting  to  note  that,  contrary  to  the  view  of  the 


630     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Oklahoma  court  in  respect  to  a  municipal  auditorium,1  the  notion 
that  a  moving-picture  theater  could  be  included  within  the  mean- 
ing of  the  term  " public  utility"  was  utterly  repudiated. 

It  ought  to  be  said,  perhaps,  that  the  ordinance  under  review 
in  this  case  did  not  in  any  wise  indicate  that  the  proposed  motion- 
picture  theater  was  to  be  established  as  a  part  either  of  the  city's 
educational  work  or  recreational  services.  So  far  as  the  ordinance 
disclosed  on  its  face  the  city  was  attempting  to  undertake  this 
enterprise  as  a  business  for  profit  just  as  it  might  have  decided  to 
establish  a  retail  shoe  store  or  dry-goods  store.  There  is  no  ques- 
tion that  the  court  was  influenced  by  this  fact.  One  of  the  judges, 
as  has  already  been  said,  reached  his  conclusion  as  to  the  invalidity 
of  the  ordinance  solely  upon  this  ground.  Indeed  when  the 
several  opinions  handed  down  in  this  case  are  carefully  analyzed, 
it  seems  probable,  to  say  the  least,  that  a  majority  of  the  Ohio 
court  would  not  prevent  a  home  rule  city  from  entering  upon  such 
an  undertaking  as  that  of  owning  and  operating  a  motion-picture 
theater  provided  the  enterprise  in  question  should  be  clearly  estab- 
lished as  a  part  of  the  city's  educational  or  recreational  activities.2 

The  Toledo  case  is  the  only  case  that  has  been  adjudicated  by 
the  Ohio  courts  involving  simply  a  question  of  the  scope  of  powers 
included  within  the  meaning  of  the  term  "  self-go vernment" 
without  regard  to  any  question  of  conflict  with  state  law.  Even 
in  this  case  the  decision,  as  we  have  seen,  turned  in  large  part 
upon  a  point  that  was  wholly  unconnected  with  the  meaning  of 
the  term  ' 'self -go vernment."  What  may  be  the  ultimate  definition 
of  this  term  in  cases  where  the  city,  without  running  counter  to 
any  statute,  nevertheless  embarks  upon  this  or  that  specific  under- 
taking remains  to  be  worked  out  through  the  joint  travail  of  the 
cities  and  the  courts. 

2.  The  relation  between  conflicting  "general  laws"  and  charter 
provisions.  It  will  be  observed  that  on  the  subject  of  the  sub- 
ordination of  charter  provisions  to  the  control  of  general  laws  of 

1  Supra,  567-569. 

2  The  point  raised  by  the  term  "  local  self-government "  was  in  fact  the  question 
of  taxation  for  a  private  purpose ;  supra,  368,  535,  570. 


HOME  RULE  IN  OHIO  631 

the  state  the  Ohio  amendment  is  by  no  means  free  from  ambiguity. 
In  the  first  place,  the  legislature  is  commanded  (sec.  2)  to  pass 
"general  laws  ...  for  the  incorporation  and  government  of  cities 
and  villages."  There  is  no  indication  that  this  refers  merely  to 
the  initial  incorporation  and  the  initial  government  of  new  cities 
and  villages.  In  fact  the  clause  here  employed  is  very  similar 
to  that  used  in  the  Ohio  constitution  of  1851,1  under  which  the 
legislature  provided  the  complete  government  of  all  cities  and 
villages.  Taken  literally  it  unquestionably  confers  upon  the 
legislature  complete  power  over  the  government  of  cities  under 
the  sole  restriction  that  such  power  shall  be  exercised  by  general 
laws.  There  is  in  the  entire  amendment  no  intimation  of  the 
relation  which  the  framers  intended  to  exist  betwreen  this  apparently 
comprehensive  power  of  the  legislature  to  deal  with  cities  as  they 
had  been  dealt  with  prior  to  the  adoption  of  this  amendment  and 
the  self-governing  power  conferred  upon  cities  by  the  subsequent 
provisions  of  the  amendment.  However,  the  powers  of  self- 
government  are  not  specifically  made  "subject  to"  these  general 
laws. 

It  must  be  borne  in  mind  that  at  the  time  of  the  adoption  of 
this  amendment  the  government  of  every  city  of  Ohio  was  estab- 
lished under  the  general  municipal  code  of  1902  —  a  law  which 
was  in  fact  as  well  as  in  legal  theory  a  law  of  general  application.2 
Manifestly  a  city  could  not  adopt  a  home  rule  charter  without 
abrogating,  in  large  part  at  least,  the  provisions  of  this  code  in 
their  application  to  such  city.  Yet  here  was  the  legislature 
placed  under  express  mandate  of  the  constitution  to  continue  to 
provide  for  the  government  of  cities  by  general  laws.  Did  this 
mean  that  the  legislature  was  to  provide  by  these  laws  for  the 
government  of  only  such  cities  as  had  failed  to  exercise  self- 
governing  powers?  Would  an  amendment  to  the  general  munici- 
pal code  in  respect  to  a  matter  pertaining  to  the  "  local  self-govern- 
ment" of  cities  apply  only  to  cities  which  had  not  framed  and 
adopted  their  own  charters?  Apparently  this  is  the  construction 
that  has  been  put  upon  this  clause  in  the  practice  of  the  legisla- 

i  Supra,  70.  2  Supra,  73,  74. 


632     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

ture  l  and  of  cities,  as  well  as  by  the  courts,  although  the  point 
has  not  been  fully  discussed  by  the  latter.2  Clearly,  however,  laws 
that  are  applicable  only  to  cities  which  have  not  adopted  home 
rule  charters  are  not  general  laws  in  the  sense  of  absolutely  uni- 
form application,  which  was  the  ultimate  construction  given  to 
this  same  phrase  by  the  Ohio  court  under  the  constitution  prior 
to  its  amendment.3  Such  laws  apply  only  to  a  class  of  cities.  It 
would  certainly  be  both  confusing  and  absurd  to  authorize  cities 
to  supersede  provisions  of  the  general  code  and  at  the  same  time 
subject  them  to  the  control  of  subsequent  amendments  to  that 
code ;  but  the  confusion  and  absurdity  would  be  directly  referable 
to  the  wholly  contradictory  declarations  of  the  constitution. 

It  may  be  said  that,  as  this  clause  of  the  constitution  has  been 
interpreted  in  practice  and  impliedly  expounded  by  the  courts,  a 
division  of  the  cities  into  two  classes  —  cities  under  home  rule 
charters  and  cities  under  the  general  code  —  has  been  read  into 
the  fundamental  law.  It  is  the  government  of  these  latter  that 
the  legislature  is  commanded  to  provide  for  by  general  laws. 

There  has  been  no  intimation  in  Ohio  as  yet  that  the  clause  here 
under  review  must  be  construed  to  mean  laws  of  general  as  dis- 
tinguished from  local  concern.  As  we  shall  see,  this  distinction 
has,  without  reference  to  this  clause,  been  introduced  into  the  judi- 
cial interpretation  of  the  term  "local  self-government;"  but 
evidently  no  doubt  has  arisen  that  the  legislature  may  by  a  law 
of  general  application  to  the  class  of  cities  still  under  the  general 
code  regulate  any  matter,  whether  of  general  or  of  local  concern. 

In  the  second  place,  as  bearing  upon  the  relation  of  state  laws 
to  the  provisions  of  home  rule  charters,  it  must  be  noted  that 
under  the  Ohio  amendment  the  legislature  is  further  empowered 
to  pass  " additional  laws"  for  the  government  of  municipalities 

1  A  number  of  provisions  of  the  municipal  code  were  amended  in  the  legislative 
sessions  of  1913,  1914,  and  1915.     These  did  not  in  practice  apply  to  cities  which 
had  adopted  home  rule  charters. 

2  In  State  ex  rel.  Lentz  v.  Edwards,  107  N.  E.  768  (1914),  infra,  642,  the  supreme 
court  declared  the  Toledo  case  to  have  held  that  the  existing  general  laws  for  the 
government  of  cities  could  be  amended  in  "one  of  three  modes."     The  first  of  these 
was  "by  the  enactment  of  general  laws  for  their  amendment."  3  Supra,  73. 


HOME  RULE  IN  OHIO  633 

which  shall  become  operative  only  upon  a  vote  of  the  municipal 
electorate  (sec.  2).  This  merely  permits  the  enactment  of  optional 
laws  for  cities.  Such  laws  have  been  sustained  as  "general  laws" 
in  many  states  in  the  absence  of  any  express  authorization  in  the 
constitution.  The  Ohio  amendment,  however,  unlike  the  con- 
tradictory provisions  of  the  California  constitution  of  1879,1  does 
not  introduce  any  confusion  in  respect  to  the  general  laws  which 
the  legislature  may  make  mandatory  and  those  which  may  be 
made  optional.  Whether  they  shall  be  the  one  or  the  other  is 
obviously  within  the  discretion  of  the  legislature. 

In  the  first  session  of  the  Ohio  legislature  following  the  adop- 
tion of  the  home  rule  amendment  an  optional  charter  law  was 
enacted.  Under  the  terms  of  this  law  any  city  might  by  a  vote 
of  its  electors  abandon  the  old  general  code  and  become  organized 
upon  any  one  of  the  three  different  plans  of  government  for  which 
provision  was  made.2  This  would  seem  to  be  of  peculiar  advantage 
to  the  smaller  cities  in  that  it  obviates  the  necessity  of  incurring 
the  trouble  and  expense  of  drafting  and  adopting  an  individual 
charter.  Few  cities,3  however,  have  availed  themselves  of  the 
privilege  granted  by  this  law,  local  sentiment  being  influenced 
perhaps  to  an  extent  at  least  by  the  notion  that  a  ready-to-wear 
garment  should  not  be  thought  of  when  the  opportunity  is  open 
to  all  to  secure  a  government  especially  tailored  to  suit  the  local 
taste. 

It  is  not  expressly  declared  by  the  constitution  that  a  home  rule 
charter  shall  be  "subject  to"  such  optional  additional  laws  as 
may  be  adopted  by  a  vote  of  the  people  of  the  city.  Apparently, 
however,  there  is  no  reason  why  a  city  which  has  framed  and 
adopted  a  charter  of  its  own  may  not  subsequently  accept  a  charter 
proposed  by  such  a  law. 

In  the  third  place,  as  bearing  upon  the  relation  between  state 
laws  and  the  home  rule  charters  in  Ohio,  it  is  to  be  observed  that 
the  only  laws  to  which  the  exercise  of  self-governing  powers  by 
cities  is  expressly  made  subordinate  are  general  laws  enacted  in 

1  Supra,  Ch.  Till.  l  Laws  of  Ohio,  1913,  pp.  767-786. 

3  Westerville  adopted  the  city  manager  plan  offered  by  this  law  on  July  31,  1915. 


634     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

pursuance  of  the  police  power  (sees.  3  and  7).  We  have  already 
had  occasion  to  note  that  in  every  home  rule  state  in  which  the 
question  has  arisen,  the  courts  have  without  exception  declared 
in  effect  that  the  city  under  a  charter  of  its  own  making  stands 
in  no  different  position  whatever  from  the  city  under  a  legislative 
charter  in  respect  to  the  complete  subordination  of  its  police 
ordinances  to  the  police  laws  of  the  state.1  The  police  regulations 
of  the  city  may  parallel  similar  regulations  imposed  by  state  law 
but  in  case  of  actual  conflict  between  the  two  the  state  law  super- 
sedes. This  is  a  rule  which  is  applicable  to  the  case  of  a  home 
rule  city  in  precisely  the  same  manner  that  it  is  applicable  to  a 
city  operating  under  a  legislative  charter.  No  peculiar  difficulty 
has  arisen  in  applying  this  rule  to  home  rule  cities  and  there  is  no 
patent  reason  why  such  difficulty  should  arise.  It  would  seem, 
therefore,  that  the  only  respect  in  which  the  powers  of  Ohio  cities 
were  expressly  subordinated  to  the  control  of  state  laws  was  a 
respect  in  which  there  was  no  apparent  necessity  for  a  specific 
declaration  of  the  constitution. 

Finally,  it  may  be  noted  in  this  connection  that  the  city  is  em- 
powered to  "frame  and  adopt  or  amend  a  charter  for  its  own 
government"  and  to  " exercise  thereunder  all  powers  of  local  self- 
government"  (sec.  7).  While  from  the  phrasing  of  this  section 
it  is  not  absolutely  certain  that  the  subjects-matter  of  such  a  char- 
ter must  relate  exclusively  to  the  local  self-government  of  the  city, 
this  is  perhaps  a  reasonable  interpretation  of  the  loose  language 
of  the  grant.  So  interpreted  the  Ohio  provision  ranges  itself 
somewhat  in  line  with  the  Colorado  provision  as  construed  by  the 
courts  of  that  state.2  Although  there  is  no  specific  declaration, 
except  as  to  the  police  power,  that  home  rule  charters  shall  be 
subject  to  state  laws  in  matters  of  state  as  distinguished  from 
local  concern,  the  implication  of  such  a  distinction  is  unmistakable. 
The  relation,  therefore,  of  superiority  and  inferiority  as  between 
state  laws  and  charter  provisions  turns  upon  the  old  vague  dis- 
tinction embodied,  as  it  is  in  Ohio,  in  the  definition  of  the  new 
term  "  local  self-government."  In  respect  to  matters  pertaining 

*  Supra,  138,  256,  403.  !  Supra,  516,  522,  556. 


HOME  RULE  IN  OHIO  635 

to  the  local  self-government  of  the  city  the  charter  provisions 
supersede  and  control  state  laws.  In  respect  to  all  other  matters 
charter  provisions  must  yield  to  state  laws.  Indeed,  even  in  the 
absence  of  a  state  law  governing  a  matter  not  pertaining  to  the 
local  self-government  of  the  city  it  is  questionable  whether  such 
matter  may  be  made  the  subject  of  charter  control,  although  this 
point  has  not  been  specifically  determined  by  the  courts. 

Already  several  cases  have  been  adjudicated  involving  ques- 
tions of  conflict  between  state  laws  and  charter  provisions : 

(1)  Elections.  In  the  case  of  Fitzgerald  v.  City  of  Cleveland  l 
the  court  was  asked  to  issue  an  injunction  restraining  the  city 
from  holding  a  primary  election  for  the  nomination  of  candidates 
for  municipal  offices  under  the  provisions  of  the  home  rule  charter 
adopted  in  July,  1913.  Briefly  put  the  allegation  was  that  the 
provisions  of  the  city's  charter  upon  the  subject  of  nominations 
were  in  conflict  with  the  general  election  laws  of  the  state,  and 
that  it  was  beyond  the  power  of  the  city  to  regulate  matters  per- 
taining to  the  nomination  of  candidates  for  offices  even  if  it  was 
within  the  competence  of  the  city  to  regulate  matters  pertaining 
to  the  election  of  such  officers.  Three  judges  concurred  in  the 
judgment  which  sustained  the  validity  of  the  charter  provisions, 
each  of  these  judges  rendering  a  separate  opinion.  Three 
judges  also  dissented.  In  all,  the  opinions  handed  down  were 
spread  over  sixty  pages  of  the  published  reports  of  the  court  and 
in  consequence  it  is  again  somewhat  difficult  briefly  to  analyze 
the  views  expressed. 

It  may  be  said  that  all  of  the  concurring  judges  were  of  the 
opinion  that  matters  pertaining  to  municipal  elections  were  within 
the  " powers  of  local  self-government."  And  it  may  also  be  said 
that  the  dissenting  judges  refused  to  express  any  opinion  generally 
upon  this  point,  it  being  their  view  that  the  issue  before  the  court 
was  only  in  respect  to  the  nomination  of  officers  and  that  this 
issue  was  determined  by  the  application  of  specific  provisions  of 
the  constitution  wholly  outside  of  the  home  rule  amendment. 
It  is  probable,  to  say  the  least,  that  had  the  question  been 

*  88  Oh.  St.  338.     1913. 


636     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

broadly  as  to  the  competence  of  the  city  to  regulate  matters 
pertaining  to  municipal  elections  in  a  manner  differing  from  that 
prescribed  by  state  law,  and  had  there  been  no  other  complicat- 
ing constitutional  provision,  there  would  have  been  a  large  con- 
currence of  the  members  of  the  court  in  the  judgment  that  was 
rendered. 

The  opinion  expressed  by  Johnson,  J.  may  be  selected  from 
among  the  opinions  as  setting  forth  the  clearest  argument  in 
support  of  the  view  that  municipal  elections  pertain  to  the  local 
self-government  of  a  city.  After  reviewing  certain  of  the  cases 
upon  this  subject  which  we  have  had  occasion  to  discuss  above, 
he  said : 

It  is  clear  upon  reason  and  authority  that  municipal  elections  are  and 
should  be  regarded  as  affairs  relating  to  the  municipality  itself,  and,  in 
the  absence  of  fundamental  limitations  prohibiting,  are  things  that  may 
be  provided  for  by  the  local  government.  This  does  not  involve  the  loss 
by  the  state  of  its  proper  authority  within  the  city. 

It  is  true,  as  contended,  that  the  state  at  large  is  interested  in  the 
purity  of  every  election,  municipal  or  otherwise,  and  is  interested  in  mak- 
ing provisions  fixing  the  qualifications  of  electors  and  for  the  preservation 
of  the  purity  of  the  ballot  effective  throughout  the  state,  but  the  state  is 
likewise  interested  in  the  protection  of  every  other  right  of  the  citizen 
and  should  and  will  throw  around  all  of  these  rights  every  protection  which 
can  be  afforded  by  the  sovereign  power.  The  state  itself  is  interested  in 
protecting  the  municipality  in  the  exercise  of  every  right  and  power 
granted  to  it  by  the  constitution.  Every  energy  of  the  state,  executive, 
legislative  and  judicial,  may  be  properly  invoked  and  will  respond  to  the 
protection  of  such  rights. 

But  it  does  not  follow  from  this  that  the  state  would  or  could  interfere 
with  the  exercise  of  the  powers  of  local  self-government  which  the  people 
of  the  state  had  conferred  upon  the  municipality  by  their  constitution. 
The  method  of  electing  municipal  officers  would  seem  to  be  a  matter 
peculiarly  belonging  to  the  municipality  itself.  The  very  idea  of  local 
self-government,  the  generating  spirit  which  caused  the  adoption  of  what 
was  called  the  home-rule  amendment  to  the  constitution,  was  the  desire 
of  the  people  to  confer  upon  the  cities  of  the  state  the  authority  to  exer- 
cise this  and  kindred  powers  without  any  outside  interference. 

It  should  be  noted  that  section  14  of  the  Ohio  home  rule  article 
declared  that  "all  elections  and  submissions  of  questions  provided 


HOME  RULE  IN  OHIO  637 

for  in  this  article  shall  be  conducted  by  the  election  authorities 
prescribed  by  general  laws."  Did  this  provision  have  any  bearing 
upon  the  subject  under  review  by  the  court?  It  would  seem  not. 
The  only  "elections  and  submissions  of  questions"  provided  in 
the  article  itself  were :  first,  the  elections  mentioned  in  section  2 
for  the  adoption  or  rejection  of  " additional  laws"  for  the  govern- 
ment of  cities,  which  elections  were  expressly  required  to  be  con- 
ducted "under  regulations  to  be  established  by  law;"  second, 
the  elections  mentioned  in  section  5  for  the  ratification  or  rejection 
of  proposals  to  acquire  public  utilities ;  third,  the  elections  men- 
tioned in  section  8,  for  the  submission  of  the  question  "shall  a 
commission  be  chosen  to  frame  a  charter,"  for  the  choice  at  the 
same  time  of  members  of  a  charter  commission,  and  for  the  rati- 
fication or  rejection  of  the  charter,  provisions  for  which  latter  elec- 
tions were  required  to  be  "made  by  the  legislative  authority  of 
the  municipality  in  so  far  as  not  prescribed  by  general  law ;"  and 
fourth,  the  elections  mentioned  in  section  9  for  the  submission  of 
charter  amendments.  It  is  manifest  at  a  glance  that  the  election 
of  officers  provided  by  the  terms  of  a  home  rule  charter  was  not 
within  this  list.  It  was  not,  in  other  words,  one  of  the  elections 
referred  to  in  section  14,  which  section  in  consequence  had  no 
bearing  whatever  upon  the  issue  at  bar.  This  point  was  made 
in  more  than  one  of  the  opinions  rendered.  Indeed  since  it  was 
evident  that  the  subject  of  elections  had  been  under  the  considera- 
tion of  the  constitutional  convention,  it  was  "natural  to  suggest" 
that,  if  the  convention  had  intended  that  all  municipal  elections 
should  be  regulated  by  state  law,  "so  important  an  exception  to 
the  grant  of  all  power  of  local  self-government  would  have  been 
included  in  the  article." 

Attention  may  be  directed  in  passing  to  the  fact  that  section 
14  contained  only  a  single  specific  requirement  —  to  wit,  that  the 
elections  provided  for  in  the  home  rule  article  should  be  conducted 
by  the  election  authorities  prescribed  by  general  law.  Even  in  re- 
spect to  these  elections,  therefore,  it  would  seem  that  a  city  might 
perhaps,  through  the  medium  of  its  own  charter,  regulate  as  to 
the  future  any  matter  in  connection  therewith  except  the  matter 


638     THE  LAW  AND   THE  PRACTICE  OF  HOME  RULE 

of  election  officials.1  It  appears,  however,  from  a  review  of  the 
home  rule  charters  in  force  in  Ohio  that  no  city  has  attempted  to 
regulate  any  matter  pertaining  to  such  elections.  On  the  other 
hand,  it  would  seem  that  the  requirement  of  section  14  might  at 
some  tune  prove  to  be  rather  vexing  and  embarrassing.  If,  for 
example,  a  city  should  establish  by  charter  provision,  as  many 
home  rule  cities  in  other  states  have  established,  the  authorities 
who  should  conduct  city  elections,  and  if  such  city  should  there- 
after hold  an  election  upon  a  proposal  to  acquire  a  public  utility, 
such  election  could  obviously  not  be  conducted  by  the  election 
officials  prescribed  by  the  charter  but  only  by  such  officials  as 
might  be  provided  for  in  the  general  laws  of  the  state.  This  is 
so  nice  a  point  that  it  is  in  itself  of  little  significance.  It  is  noted 
here  solely  because  it  illustrates  that  in  the  phrasing  of  a  constitu- 
tional provision  granting  home  rule  powers  the  most  painstaking 
care  is  necessary.  Every  word  and  every  expression  should  be 
laboriously  scrutinized.  It  is  not  to  be  supposed  that  the  framers 
of  the  Ohio  provision  intended  by  section  14  to  open  the  way  for 
any  such  absurd  situation  as  the  one  just  indicated.  The  possi- 
bility simply  never  occurred  to  them.  Yet  the  law  is  in  fact  as 
firmly  fixed  as  if  there  had  been  deliberateness  of  purpose;  and 
petty  embarrassment  may  easily  develop  out  of  it.  As  Ohio 
charters  now  stand,  such  a  difficulty  is  not  likely  to  arise  for  the 
reason  that  every  home  rule  charter  has  voluntarily  adopted  the 
election  authorities  as  prescribed  by  general  law.  Such  adoption 
by  these  cities  was,  however,  wholly  voluntary. 

To  return,  then,  to  the  final  point  covered  by  the  opinions 
expressed  in  the  Fitzgerald  case,  it  may  be  noted  that  in  another 
amendment  ratified  in  September,  1912  it  was  expressly  declared 
that  "all  nominations  for  elective  state,  district,  county  and 
municipal  offices  shall  be  made  at  direct  primary  elections  or  by 
petition  as  provided  by  law."  2  The  provisions  of  the  Cleveland 
charter  which  were  in  dispute  established  a  nominating  system 

1  This  would  not  be  true  in  respect  to  any  election  for  the  ratification  or  rejec- 
tion of  a  charter,  for  the  clear  implication  of  the  provision  is  that  such  elections  may 
be  regulated  by  general  laws.  2  Art.  V,  sec.  7. 


HOME  RULE  IN  OHIO  639 

by  which  candidates  for  municipal  offices  in  that  city  should  be 
chosen.  Were  these  provisions  in  violation  of  the  amendment 
and  was  the  city  subject  to  the  control  of  the  state  law  in  this 
matter?  In  the  opinion  of  the  three  dissenting  members  of  the 
court  this  was  the  only  point  involved  in  the  case.  While  it  was 
admitted  that  the  term  "law"  did  not  lend  itself  to  precise  defini- 
tion, it  was  nevertheless  the  view  of  these  judges  that  the  con- 
nection in  which  it  was  used  in  the  primary  election  amendment 
showed  conclusively  that  the  framers  of  that  amendment  intended 
this  term  to  mean  a  law  passed  by  the  legislature. 

It  will  be  recalled  that  this  was  in  accord  with  the  decision  of 
the  Oklahoma  court  upon  practically  the  same  point ; l  and  it 
must  be  admitted  that,  everything  considered,  there  was  strong 
force  to  the  argument  that  where  the  constitution  in  unmistakable 
terms  required  that  a  system  of  nominating  " municipal  officers" 
by  primary  elections  or  by  petition  should  be  provided  by  law, 
this  clearly  implied  a  law  enacted  by  the  legislature.  However 
absurd  it  might  be  that  the  legislature  should  have  power  to  con- 
trol, within  the  limits  set  by  the  constitution,  the  matter  of  mu- 
nicipal nominations,  while  the  city,  there  being  no  constitutional 
mandate  to  the  legislature  in  respect  to  municipal  elections,  should 
be  competent  to  regulate  all  other  matters  pertaining  to  its  own 
elections,  the  fact  is  that  this  absurdity  was  created  by  the  con- 
stitution and  not  by  the  judiciary.  The  probable  truth  of  the 
matter  is  that  the  primary  election  amendment  was  drafted  with- 
out any  thought  or  consideration  of  the  purport  of  the  home  rule 
amendment  and  possibly  without  any  knowledge  whatever  of  the 
fact  that  this  subject  of  election  control  had  arisen  to  harass  the 
courts  in  nearly  every  state  in  which  home  rule  powers  had  been 
conferred  upon  cities.  It  is  undeniable  that  the  framers  of  the 
constitutional  amendments  in  question  should  have  considered 
them  in  relation  to  each  other ;  but  since  they  apparently  did  not 
do  so,  it  is  open  to  question  how  far  the  courts,  in  order  to  elimi- 
nate a  practical  absurdity  created  by  the  express  terms  of  the 
fundamental  law,  should  allow  themselves  to  be  led  into  at- 

1  Supra,  584,  585. 


640  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

tenuated  arguments  founded  upon  an  utterly  unwarranted  twist- 
ing of  the  plain  meaning  of  terms.  This  sort  of  thing  is  perhaps 
justified  to  an  extent  where  a  more  or  less  static  constitution  must 
be  applied  to  meet  situations  which  its  framers  could  not  reason- 
ably have  anticipated.  But  where  a  convention  has  been  as- 
sembled for  the  avowed  purpose  of  revising  a  constitution  to 
meet  all  modern  requirements,  it  is  doubtful,  to  say  the  least, 
whether  the  courts  within  a  year  after  its  adoption  should  assume 
the  function  of  correcting  by  judicial  decree  such  blunders, 
whether  of  carelessness,  ignorance,  or  stupidity,  as  might  be  found 
written  in  terms  that  admit  of  no  alternative  construction. 

Read,  for  example,  the  following  attempt  that  was  made  by 
Judge  Johnson  to  " reconcile"  the  two  amendments  here  under 
review : 

The  mandate  in  Section  7,  Article  V,  is  to  provide  by  law  for  the 
nomination  by  primary  or  by  petition  of  all  elective  state,  district,  county 
and  municipal  officers.  Such  a  law  applying  throughout  the  state  to  all 
of  the  officers  named  must  of  course  be  passed  by  the  general  assembly, 
and  will  therefore  apply  uniformly  throughout  the  whole  state  and  to 
every  municipality  which  has  not  taken  the  steps  pointed  out  in  the  Toledo 
case  "to  secure  immunity  from  such  general  laws." 

It  must  be  remembered  that  any  statute  passed  under  Section  7  of 
Article  V,  which  provides  by  law  for  nomination,  by  primary,  or  by  pe- 
tition, of  all  elective  state,  district,  county  and  municipal  officers,  is  a 
general  law.  But  this  general  law  passed  under  this  provision  must  yield 
to  a  charter  provision  adopted  by  a  municipality  under  a  special  consti- 
tutional provision,  which  special  provision  was  adopted  for  the  pur- 
pose of  enabling  the  municipality  to  relieve  itself  of  the  operation  of 
general  statutes  and  adopt  a  method  of  its  own  to  assist  in  its  own 
self-government,  and  which  charter  when  adopted  has  the  force  and 
effect  of  law. 

The  logic  of  this  reasoning  is  far  to  seek.  The  home  rule  amend- 
ment was  no  more  a  " special  constitutional  provision"  than  was 
the  primary  election  law  amendment.  The  latter  amendment 
did  not  either  expressly  or  impliedly  except  home  rule  cities  from 
its  operation.  Let  it  be  fully  conceded  that  the  power  to  regu- 
late municipal  nominations  belongs  inherently  among  the  powers 
of  local  self-government  and  that  no  express  exception  in  respect 


HOME  RULE  IN  OHIO  641 

to  this  matter  was  made  in  direct  connection  with  the  grant  of 
"all"  such  powers.  It  is  nevertheless  perfectly  manifest  that 
this  grant  of  powers  was  not  as  comprehensive  as  the  use  of  the 
term  "all"  might  imply.  The  amendment  did  not,  it  is  true, 
expressly  declare  that  the  city  should  exercise  all  powers  of  local 
self-government  subject  to  the  limitations  of  the  fundamental 
law  itself.  But  surely  it  could  not  be  contended  that  the  home 
rule  city  was  empowered  even  in  the  exercise  of  self-governing 
powers  to  override  the  constitution  of  the  state.  Now  in  plain 
point  of  fact  there  were  a  number  of  powers  of  local  self-govern- 
ment that  were  by  the  terms  of  the  constitution  withdrawn  from 
the  city  that  elected  to  frame  its  own  charter  —  powers  in  respect 
to  which  such  a  city  was  placed  in  precisely  the  same  category  as 
cities  under  legislative  charters.  Thus  in  the  same  article  that 
conferred  home  rule  powers  all  cities  were  placed  under  certain 
restrictions  in  respect  to  the  matter  of  acquiring  public  utilities. 
Was  not  the  home  rule  city  to  this  extent  deprived  of  a  power  of 
local  self-government?  Again  restrictions  were  imposed  by  this 
article  upon  all  cities  in  the  matter  of  issuing  bonds  for  the  con- 
demnation of  property  in  excess  of  what  might  be  actually  occupied 
for  public  improvements.  If  the  validity  under  the  federal  con- 
stitution of  this  grant  of  power  be  conceded,  was  not  the  city  to 
this  extent  deprived  of  a  like  power  by  the  limitation  placed  by 
this  article  upon  the  competence  of  any  municipality  to  levy 
special  assessments  ?  Could  it  be  contended  for  a  moment  that  a 
city,  because  it  was  authorized  to  exercise  all  powers  of  local  self- 
government,  was  freed  from  the  control  of  the  laws  restricting  the 
financial  powers  of  all  cities,  in  spite  of  the  fact  that  the  article 
clearly  contemplated  the  enactment  of  such  laws  ? 

In  another  amendment  which  was  adopted  in  the  year  1912 
the  "initiative  and  referendum  powers"  were  "reserved  to  the 
people  of  each  municipality."  1  Surely  it  was  a  matter  pertaining 
to  the  local  self-government  of  a  city  to  decide  whether  or  not 
ordinances  should  be  enacted  in  this  manner.  But  could  it  be 
contended  that  a  city  in  framing  a  charter  was  competent  to  pro- 

1  Art.  II,  sec.  If. 


642     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

hibit  the  exercise  of  initiative  and  referendum  powers?  This 
provision  also  declared  that  "such  powers  shall  be  exercised  in  the 
manner  now  or  hereafter  provided  by  law."  Most,  if  not  all,  of 
the  home  rule  charters  of  Ohio  have  in  fact  by  their  own  terms 
provided  for  the  exercise  of  such  powers ;  and  presumably,  under 
the  doctrine  of  the  Fitzgerald  case,  the  court  would  hold  that 
these  charter  provisions  superseded  the  law  upon  this  subject. 
In  other  words,  if  the  occasion  should  arise,  the  court  would  be 
compelled  to  dissect  this  provision  of  the  constitution  and  to 
declare  that,  while  a  home  rule  city  was  embraced  within  the  term 
"each  municipality,"  so  that  in  the  exercise  of  local  self-govern- 
ment the  people  of  the  city  could  not  deprive  themselves  of  initia- 
tive and  referendum  powers,  such  a  city  was,  on  the  other  hand, 
not  within  the  meaning  of  the  term  "each  municipality"  when  it 
came  to  the  consideration  of  the  clause  of  the  same  'sentence 
which  declared  that  such  powers  should  be  exercised  in  the  manner 
provided  by  law. 

There  are  other  provisions  of  the  Ohio  constitution  that  im- 
pose limitations  upon  cities  in  the  exercise  of  specific  powers  of 
local  self-government;  but  further  enumeration  seems  unneces- 
sary. The  point  is  that  the  grant  of  all  such  powers  was  certainly 
subject  to  some  constitutional  exceptions.  This  being  so,  it  is  at 
least  open  to  debate  whether  the  court,  in  an  effort  to  sustain  the 
spirit  of  the  home  rule  article  and  to  read  substance  into  its  vague- 
ness, was  justified  in  declaring  that  another  article  of  the  consti- 
tution did  not  mean  what  it  plainly  said. 

(2)  Civil  service.  Almost  precisely  the  same  difficulty  in  the 
way  of  interpreting  the  home  rule  amendment  in  the  light  of  an- 
other amendment  adopted  in  1912  was  presented  in  the  case  of 
State  ex  rel.  Lentz  v.  Edwards.1  The  other  amendment  involved 
was  that  which  required  the  establishment  of  the  merit  system  in 
"the  civil  service  of  the  state,  the  several  counties,  and  cities," 
and  expressly  declared  that  "laws  shall  be  passed  providing  for 
the  enforcement  of  this  provision."  2  The  legislature  promptly 
complied  with  this  mandate  by  enacting  a  new  civil  service  law 

i  107  N.  E.  768.     1914.  »  Art.  XV,  sec.  10. 


HOME  RULE  IN  OHIO  643 

in  which  provision  was  made  for  the  appointment  of  civil  service 
commissioners  in  every  city  by  the  "  may  or  or  other  chief  appoint- 
ing authority."  l  Subsequently  the  city  of  Dayton  adopted  a 
charter  which  provided  for  the  appointment  of  such  commissioners 
by  the  council,  and  the  commissioners  appointed  under  the  law 
instituted  a  proceeding  in  quo  warranto  against  the  commissioners 
appointed  under  the  charter. 

The  court  held  that  it  could  "not  be  contended  that  the  civil 
service  of  a  city  is  not  a  matter  of  municipal  concern,  nor  that  the 
power  of  regulating  that  service  is  not  one  of  the  powers  of  local 
self-government."  So  long  as  the  charter  provisions  comply  with 
the  merit  principle  required  by  the  constitution  "they  are  valid, 
and  .  .  .  discontinue  the  general  law  on  the  subject  as  to  that 
municipality."  There  was  no  specific  discussion  of  the  fact  that 
the  responsibility  for  the  enforcement  of  the  merit  principle  was 
by  the  constitution  expressly  imposed  upon  the  legislature;  but 
the  "principles  declared  in  the  case  of  Fitzgerald  v.  City  of  Cleve- 
land" were  held  to  "apply  here  and  control  the  decision  of  this 
case." 2 

It  may  be  remarked  in  passing  that  this  is  the  first  case  in- 
volving a  civil  service  question  proper  that  has  arisen  in  any  of 
the  home  rule  states,3  although  it  will  be  recalled  that  question 
has  arisen  in  respect  to  the  power  of  the  city  to  regulate  the 
matter  of  making  removals  from  office  in  a  manner  contrary  to 
state  law.4  Incidentally  it  may  also  be  recorded  that  in  a  case 
decided  at  the  same  term  of  court  as  the  Lentz  case  the  Ohio  court 
held  that  the  civil  service  law  did  not  confer  upon  the  state  com- 
mission power  to  investigate  acts  of  the  mayor  of  a  city  in  remov- 

i  Laws  of  Ohio,  1913,  pp.  608,  708. 

*  A  case  involving  the  legality  of  the  sinking  fund  commission  of  Cleveland  was 
decided  in  1915  by  applying  the  rule  of  the  Lentz  case.  No  opinion  was  written 
because  the  cases  were  regarded  as  being  so  similar.  The  charter  provisions  estab- 
lishing the  sinking  fund  commission  were  sustained,  although  in  conflict  with  the 
general  law,  and  although  the  home  rule  amendment  expressly  authorized  the 
legislature  "to  limit  the  power  of  municipalities  to  levy  taxes  and  incur  debts." 

3  Except   Crowley    v.    Freud,   supra,   388,  which  involved   the  power  of    San 
Francisco  to  apply  the  merit  system  to  county  officers. 

4  Supra,  163,  313,  364. 


644     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

ing  local  civil  service  commissioners  although  it  did  vest  in  them 
power  to  investigate  the  acts  of  the  commissioners  themselves.1 
The  city  in  which  such  an  investigation  was  contemplated  had  not 
adopted  a  home  rule  charter.  Whether  the  state  commission 
would  have  powers  of  investigation  over  a  local  commission 
established  by  a  home  rule  charter  was  not  discussed ;  but  under 
the  doctrine  of  the  Lentz  case  it  is  probable  that  such  powers  would 
not  be  sustained.  It  is  probable  also  that  as  to  the  home  rule 
city  the  governor  would  be  held  to  have  no  power  to  remove  the 
mayor,  although  he  enjoys  this  power  under  the  general  municipal 
code.  The  court  referred  to  this  provision  in  the  code  as  show- 
ing that  the  view  which  they  held  concerning. the  investigatory 
powers  of  the  state  civil  service  commission  as  prescribed  by  law 
would  "not  weaken  in  any  way  the  arm  of  the  state  in  the  exercise 
of  a  supervisory  power  over  the  conduct  of  the  mayor  of  a  city." 
Yet  the  mere  exercise  of  home  rule  powers  would  doubtless  not  only 
"weaken"  but  also  completely  destroy  the  "arm  of  the  state"  in 
this  capacity. 

(8)  Streets  and  public  utilities.  In  Billings  v.  Cleveland  Rail- 
way Co.,2  decided  in  July,  1915,  the  supreme  court  of  Ohio  re- 
fused to  sustain  the  contention  that  an  ordinance  of  Cleveland 
granting  to  a  street  railway  company  a  franchise  to  extend  its 
tracks  in  a  certain  street  was  void  because,  although  enacted  in 
compliance  with  the  provisions  upon  the  subject  contained  in  the 
home  rule  charter  of  the  city,  the  consent  of  the  property  owners 
in  the  street  had  not  been  obtained  as  required  by  the  General 
Code.3  It  was  declared  to  have  been  "contemplated  by  the 
framers  of  the  amendment  to  the  constitution  that  the  provisions 
in  a  charter,  adopted  by  a  city,  would  differ  from  the  general 
laws  of  the  state,  within  the  limits  defined  by  the  constitution." 
No  reference  was  made  to  the  fact  that  the  amendment  expressly 
commanded  the  legislature  "to  provide  for  the  .  .  .  govern- 

» Green  v.  State  Civil  Service  Commission,  107  N.  E.  531.     1914. 
*  Not  yet  reported.     A  typewritten  copy  of  the  opinion  rendered  was  kindly 
furnished  the  author  by  Chief  Justice  Hugh  L.  Nichols. 
'Sees.  3777,  9105. 


HOME  RULE  IN  NEBRASKA  645 

ment  of  cities"  by  " general  laws."  l  General  control  over  the 
streets  of  a  city,  as  well  as  specific  control  for  public  utility  pur- 
poses, was  held  to  be  a  matter  of  purely  local  concern  and  there- 
fore included  within  the  powers  of  local  self-government.2  More- 
over, express  authority  to  regulate  this  matter  by  the  provisions 
of  a  home  rule  charter  was  found  in  the  constitutional  amendment 
itself,  where,  in  addition  to  broad  powers  of  municipal  owner- 
ship, the  city  was  authorized  "to  contract  with  others"  for  the 
"product  or  service"  of  any  public  utility.3 

This  case  is  not  authority  for  the  rule  that  the  power  to  regu- 
late all  matters  pertaining  to  the  operation  of  public  utilities  is 
one  of  the  powers  of  local  self-government.  It  involved  no  ques- 
tion of  the  competence  of  the  city  generally  to  regulate  public 
utility  corporations  in  the  exercise  of  their  existing  franchises. 
Whether  such  broad  competence  can  be  derived  from  the  power 
to  control  streets  remains  to  be  determined  in  Ohio.  But  certain 
it  is  that  the  doctrine  that  in  its  management  of  streets  a  city 
acts  merely  as  an  agency  of  the  state  4  was  utterly  rejected.  More- 
over, it  would  seem  that  the  power  of  the  city  to  make  charter 
provision  for  the  regulation  of  utility  corporations  in  their  exer- 
cise of  future  franchises  is  plenary.  For  franchises  are  contracts 
of  very  variable  content,5  and  if  the  right  to  prescribe  the  terms 
of  such  contracts  be  conceded  to  the  home  rule  city,  it  is  manifest 
that  the  local  charter  might  require  that  every  franchise  should 
expressly  reserve  to  the  city  the  power  of  general  regulation. 

Home  Rule  in  Nebraska 

At  the  general  election  held  in  November,  1912  the  following 
amendment  conferring  powers  of  home  rule  upon  the  cities  of 
Nebraska  was  by  ratification  at  the  polls  incorporated  into  the 
constitution  of  that  state  : 6 

1  Supra,  631. 

2  Sunset  Telephone  &  Telegraph  Co.  v.  Pasadena,  161  Cal.  265  (1911),  supra, 
309,  349,  was  quoted  with  approval. 

3  Supra,  622.  *  Supra,  276. 
8  Supra,  310-313  ;   450.                                                 •  Art.  XI  A. 


646     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

Sec.  2.  Any  city  having  a  population  of  more  than  five  thousand 
(5000)  inhabitants  may  frame  a  charter  for  its  own  government,  con- 
sistent with  and  subject  to  the  constitution  and  laws  of  this  state,  by 
causing  a  convention  of  fifteen  freeholders,  who  shall  have  been  for  at 
least  five  years  qualified  electors  thereof,  to  be  elected  by  the  qualified 
voters  of  said  city  at  any  general  or  special  election,  whose  duty  it  shall 
be  within  four  months  after  such  election,  to  prepare  and  propose  a  char- 
ter for  such  city,  which  charter,  when  completed,  with  a  prefatory  synop- 
sis, shall  be  signed  by  the  officers  and  members  of  the  convention,  or  a 
majority  thereof,  and  delivered  to  the  clerk  of  said  city,  who  shall  publish 
the  same  in  full,  with  his  official  certification,  in  the  official  paper  of  said 
city,  if  there  be  one,  and  if  there  be  no  official  paper,  then  in  at  least  one 
newspaper  published  and  in  general  circulation  in  said  city,  three  times, 
and  a  week  apart,  and  within  not  less  than  thirty  days  after  such  publi- 
cation it  shall  be  submitted  to  the  qualified  electors  of  said  city  at  a 
general  or  special  election,  and  if  a  majority  of  such  qualified  voters, 
voting  thereon,  shall  ratify  the  same,  it  shall  at  the  end  of  sixty  days 
thereafter,  become  the  charter  of  said  city  and  supersede  any  existing 
charter  and  all  amendments  thereof.  A  duplicate  certificate  shall  be 
made,  setting  forth  the  charter  proposed  and  its  ratification  (together 
with  the  vote  for  and  against)  and  duly  certified  by  the  city  clerk,  and 
authenticated  by  the  corporate  seal  of  said  city  and  one  copy  thereof 
shall  be  filed  with  the  secretary  of  state  and  the  other  deposited  among 
the  archives  of  the  city,  and  shall  thereupon  become  and  be  the  charter 
of  said  city,  and  all  amendments  to  such  charter  shall  be  authenticated 
in  the  same  manner,  and  filed  with  the  secretary  of  state  and  deposited 
in  the  archives  of  said  city. 

Sec.  3.  But  if  said  charter  be  rejected,  then  within  six  months  there- 
after, the  mayor  and  council  or  governing  authorities  of  said  city  may 
call  a  special  election  at  which  fifteen  members  of  a  new  charter  conven- 
tion shall  be  elected  to  be  called  and  held  as  above  in  such  city,  and  they 
shall  proceed  as  above  to  frame  a  charter  which  shall  in  like  manner  and 
to  the  like  end  be  published  and  submitted  to  a  vote  of  said  voters  for 
their  approval  or  rejection.  If  again  rejected,  the  procedure  herein  desig- 
nated may  be  repeated  until  a  charter  is  finally  approved  by  a  majority 
of  those  voting  thereon,  and  certified  (together  with  the  vote  for  and 
against)  to  the  secretary  of  state  as  aforesaid,  and  a  copy  thereof  deposited 
in  the  archives  of  the  city,  whereupon  it  shall  become  the  charter  of  said 
city.  Members  of  each  of  said  charter  conventions  shall  be  elected  at 
large ;  and  they  shall  complete  their  labors  within  sixty  days  after  their 
respective  election.  The  charter  shall  make  proper  provision  for  con- 
tinuing, amending  or  repealing  the  ordinances  of  the  city. 

Sec.  4.     Such  charter  so  ratified  and  adopted  may  be  amended,  or  a 


HOME  RULE  IN  NEBRASKA  647 

charter  convention  called,  by  a  proposal  therefor  made  by  the  law- 
making  body  of  such  city  or  by  the  qualified  electors  in  number  not  less 
than  five  per  cent,  of  the  next  preceding  gubernatorial  vote  in  such  city, 
by  petition  filed  with  the  council  or  governing  authorities.  The  council 
or  governing  authorities  shall  submit  the  same  to  a  vote  of  the  qualified 
electors  at  the  next  general  or  special  election  not  held  within  thirty  days 
after  such  petition  is  filed.  In  submitting  any  such  charter  or  charter 
amendments,  any  alternative  article  or  section  may  be  presented  for  the 
choice  of  the  voters  and  may  be  voted  on  separately  without  prejudice 
to  others.  Whenever  the  question  of  a  charter  convention  is  carried  by 
a  majority  of  those  voting  thereon,  a  charter  convention  shall  be  called 
through  a  special  election  ordinance,  and  the  same  shall  be  constituted 
and  held  and  the  proposed  charter  submitted  to  a  vote  of  the  qualified 
electors,  approved  or  rejected,  as  provided  in  section  two  hereof.  The 
city  clerk  of  said  city  shall  publish  with  his  official  certification,  for  three 
times,  a  week  apart  in  the  official  paper  of  said  city,  if  there  be  one  and 
if  there  be  no  official  paper,  then  in  at  least  one  newspaper,  published  and 
in  general  circulation  in  said  city,  the  full  text  of  any  charter  or  charter 
amendment  to  be  voted  on  at  any  general  or  special  election. 

No  charter  or  charter  amendment  adopted  under  the  provisions  of 
this  amendment  shall  be  amended  or  repealed  except  by  electoral  vote. 
And  no  such  charter  or  charter  amendment  shall  diminish  the  tax  rate 
for  state  purposes  fixed  by  act  of  the  legislature,  or  interfere  in  any  wise 
with  the  collection  of  state  taxes. 

This  provision,  as  compared  with  the  provisions  of  certain  other 
states,  is  in  no  respect  distinctive.  The  fourth  section,  although 
the  point  is  not  free  from  doubt,  may  perhaps  be  construed  as 
regulating  the  manner  in  which  a  first  charter  convention  as  well 
as  subsequent  conventions  may  be  called.  So  construed  it  reads 
precision  into  the  vague  declaration  of  the  first  section  to  the 
effect  that  the  city  may  exercise  the  power  conferred  "by  causing 
a  convention  of  fifteen  freeholders  ...  to  be  elected. "  It  is 
open  to  question,  however,  whether  the  "mayor  and  council  or 
governing  authorities"  are  by  the  third  section  vested  with  abso- 
lute discretion,  upon  the  rejection  of  a  charter,  to  decide  upon 
the  call  of  another  convention  within  six  months.  Such  discretion 
appears  to  be  vested  in  these  authorities ;  but  if  the  call  of  a  first 
convention  may  be  initiated  by  a  five  per  centum  petition  of  voters, 
it  is  passing  strange  that  the  call  of  a  second  convention,  when  the 


648  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

work  of  the  first  has  proved  abortive,  may  be  initiated  only  by 
the  corporate  authorities.  If  these  are  the  conditions  established 
by  the  constitution  —  and  such  they  appear  to  be  —  it  is  none 
the  less  to  be  noted  that,  in  case  the  authorities  fail  to  act  upon 
the  call  of  another  convention  within  the  prescribed  six  months, 
the  original  status  quo  in  regard  to  this  matter  would  presumably 
be  restored.  In  other  words,  a  charter  convention  could  doubt- 
less be  thereafter  initiated  by  petition  of  voters  as  well  as  by 
action  of  the  law-making  body  of  the  city.  On  the  whole,  how- 
ever, it  must  be  said  that  the  provisions  of  the  constitution  touch- 
ing this  matter  of  procedure  are  somewhat  inexcusably  vague  and 
uncertain. 

Under  the  existing  election  laws  these  provisions  have  never- 
theless been  regarded  in  practice  as  eliminating  the  necessity  of 
the  passage  of  an  enabling  act  by  the  legislature.  In  1913  a  brief 
statute  was  enacted  with  the  object  of  clearing  up  at  least  one 
ambiguity  in  respect  to  the  matter  of  procedure.  Section  four 
declares  that  "in  submitting  any  such  charter  or  charter  amend- 
ments, any  alternative  article  or  section  may  be  presented  for  the 
choice  of  the  voters."  This  does  not  clearly  indicate  that  an 
article  or  section  might  be  submitted  by  petition  as  an  alternative 
to  some  article  or  section  submitted  by  a  charter  convention. 
The  statute  in  question  1  expressly  provides  that  additional  or 
alternative  articles  and  sections  may  be  proposed  by  petition  of 
ten  per  centum  of  the  voters  and  submitted  at  the  same  time  that 
any  charter  or  charter  amendments  prepared  by  a  charter  conven- 
tion are  submitted.  This  statute  is  apparently  merely  in  the 
nature  of  a  supplement  to  the  home  rule  requirements  as  laid 
down  in  the  constitution. 

The  Nebraska  amendment  contains  the  provision  that  is  found 
in  the  constitutions  of  so  many  home  rule  states  to  the  effect  that 
the  charter  framed  and  adopted  by  any  city  shall  be  "  consistent 
with  and  subject  to  the  constitution  and  laws  of  the  state."  What 
may  be  the  scope  of  powers  included  within  the  grant  of  authority 
to  frame  a  charter  and  what  may  be  the  order  of  precedence 

i  Laws  of  Neb.,  1913,  p.  569. 


HOME  RULE  IN  TEXAS  649 

between  state  laws  and  charter  provisions  that  are  found  to 
be  in  conflict  are  questions  that  remain  to  be  determined  in  this 
state. 

As  yet  no  home  rule  charter  has  been  adopted  in  Nebraska. 
Charters  were  defeated  by  the  voters  of  Lincoln  in  December, 
1913  and  by  the  voters  of  Omaha  in  March,  1914.  A  charter 
convention  was  elected  in  the  city  of  Hastings  in  the  spring  of 
1913  but  adjourned  without  submitting  a  charter  to  the  people. 
According  to  the  census  of  1910  there  are  only  twelve  cities  in 
this  state  which  have  a  population  of  as  many  as  five  thousand 
inhabitants  —  the  number  required  by  the  constitution  before  a 
city  may  exercise  the  home  rule  powers  conferred.  The  history 
of  the  Nebraska  home  rule  amendment  in  practice  as  well  as  in 
judicial  construction  remains  yet  to  be  unfolded. 

Home  Rule  in  Texas 

The  Texas  constitution  of  1876  provided  that  "cities  and  towns 
having  a  population  of  10,000  inhabitants  or  less  may  be  chartered 
alone  by  general  law,"  1  and  that  " cities  having  more  than  10,000 
inhabitants  may  have  their  charters  granted  or  amended  by  special 
act  of  the  legislature."  2  At  the  general  election  held  in  Novem- 
ber, 1912  an  amendment  was  adopted  which  wrote  this  latter 
provision  out  of  the  constitution  and  substituted  the  following 
declaration : 3 

Cities  having  more  than  five  thousand  (5,000)  inhabitants  may,  by  a 
majority  vote  of  the  qualified  voters  of  said  city,  at  an  election  held  for 
that  purpose,  adopt  or  amend  their  charters,  subject  to  such  limitations 
as  may  .be  prescribed  by  the  legislature,  and  providing  that  no  charter  or 
any  ordinance  passed  under  said  charter  shall  contain  any  provision  in- 
consistent with  the  constitution  of  the  state,  or  of  the  general  laws  en- 
acted by  the  legislature  of  this  state ;  said  cities  may  levy,  assess,  and 
collect  such  taxes  as  may  be  authorized  by  law  or  by  their  charters ;  but 
no  tax  for  any  purpose  shall  ever  be  lawful  for  any  one  year,  which  shall 
exceed  two  and  one-half  per  cent,  of  the  taxable  property  of  such  city,  and 
no  debt  shall  ever  be  created  by  any  city,  unless  at  the  same  time  provi- 
sion be  made  to  assess  and  collect  annually  a  sufficient  sum  to  pay  the 

1  Art.  XI,  sec.  4.  2  Art.  XI,  sec.  5.  3Art.  XI,  sec.  5. 


650     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

interest  thereon  and  create  a  sinking  fund  of  at  least  two  per  cent,  thereon ; 
and  provided  further  that  no  city  charter  shall  be  altered,  amended,  or 
repealed  oftener  than  every  two  years. 

According  to  the  census  figures  of  1910  there  were  in  Texas 
forty  cities  with  a  population  of  more  than  5000  inhabitants. 
Eight  of  these  cities  had  populations  of  more  than  25,000.  The 
largest  and  the  second  largest  cities  —  San  Antonio  and  Dallas  — 
were  still  slightly  below  the  one  hundred  thousand  mark.  Houston 
and  Fort  Worth  had  between  seventy  and  eighty  thousand  in- 
habitants, while  Galveston  with  a  population  of  36,000  ranked 
fifth  among  the  cities  of  the  state. 

Under  this  constitutional  grant  of  power,  amplified  by  an  "en- 
abling act"  passed  in  April,  19 13,1  activity  among  the  cities  of 
Texas  in  the  framing,  adopting,  and  amending  of  charters  began 
almost  immediately.  Within  a  period  of  less  than  two  years  fol- 
lowing the  adoption  of  the  constitutional  amendment  the  cities  of 
Amarillo,  Denton,  McKinney,  Sweetwater,  Waco,  Wichita  Falls, 
and  Taylor  had  framed  and  adopted  new  charters,  while  one  or 
more  amendments  had  been  submitted  and  ratified  in  Beaumont, 
Corsicana,  Dallas,  El  Paso,  Ennis,  Galveston,  Houston,  Houston 
Heights,  Marshall,  San  Antonio,  and  Terrell.  Some  of  these 
amendments  were  of  minor  importance  but  others  effected  charter 
changes  of  a  fundamental  character. 

At  the  time  of  the  adoption  of  this  home  rule  amendment  every 
city  of  importance  in  Texas  was  operating  under  a  special  legisla- 
tive charter.  It  will  be  observed  that  the  amendment  does  not 
specifically  prohibit  the  enactment  of  special  laws  relating  to  the 
affairs  of  those  cities  which  had  not  elected  to  exercise  the  home 
rule  powers  conferred.  Moreover,  when  it  is  considered  that  the 
declaration  of  the  constitution  to  the  effect  that  cities  of  10,000 
inhabitants  or  less  "may  be  chartered  alone  by  general  law" 
was  not  altered  by  the  amendment  but  remained  as  a  part  of  the 
fundamental  law,  it  would  seem  that  by  somewhat  clear  implica- 
tion the  power  of  the  legislature  to  continue  the  policy  of  special 
legislation,  at  least  for  those  cities  which  may  not  take  advantage 

1  General  Laws  of  Tex.,  1913,  ch.  147. 


HOME  RULE  IN  TEXAS  651 

of  the  power  to  form  charters,  remained  undisturbed.  What 
may  be  the  correct  interpretation  of  the  constitution  upon  this 
point  has  not  as  yet  been  determined  by  judicial  decision. 

So  far  as  home  rule  charters  are  concerned  it  is  to  be  noted  that 
their  provisions  are  required  to  be  consistent  with  "the  general 
laws  enacted  by  the  legislature."  Of  course  this  points  the  way 
for  the  courts  to  declare  void  any  charter  provision  which  is  found 
to  be  in  conflict  with  a  state  law  on  a  subject  of  general,  as  dis- 
tinguished from  local,  concern.  But  this  requirement  in  the 
Texas  amendment  is  of  especial  significance  in  view  of  the  fact 
that  the  amendment  itself  is  obviously  not  self-executing.  Unlike 
the  Oregon  provision  it  was  not  accompanied  by  another  amend- 
ment conferring  initiative  and  referendum  powers.  It  was  mani- 
festly necessary  that  procedure  should  be  prescribed  by  which  the 
qualified  voters  of  a  city  might  exercise  charter-making  powers, 
although  it  may  be  noted  incidentally  that  during  the  months 
immediately  following  the  adoption  of  the  amendment  but  pre- 
ceding the  enactment  of  an  enabling  statute,  certain  cities  of  Texas 
took  steps  of  an  informal  and  unregulated  character  in  the  direc- 
tion of  exercising  the  home  rule  powers  conferred.1 

There  seems  to  be  little  doubt  that,  as  in  the  case  of  Michigan, 
the  legislature  of  Texas  is  competent  to  enact  a  general  law  regu- 
lating not  only  the  procedure  for  the  exercise  of  charter-making 
powers  but  also  the  scope  of  powers  which  may  be  exercised.  In 
other  words,  it  does  not  seem  possible  that  the  courts  could  construe 
the  term  " general  laws"  as  being  limited  to  laws  of  general  or 
state- wide  concern,  for  since  it  is  patent  that  a  general  law  effectu- 
ating the  home  rule  amendment  is  indispensable,  which  law  would 
unquestionably  relate  to  the  affairs  of  cities,  it  would  seem  that 
the  courts  would  probably  be  under  compulsion  to  declare  that 
the  general  laws  with  which  charter  provisions  must  be  consistent 
embraced  not  only  laws  of  general  concern  but  also  laws  of  mu- 
nicipal concern  but  of  general  application  to  cities.  The  only 
essential  difference,  then,  between  the  Texas  scheme  and  the 
Michigan  scheme  is  that  in  the  latter  state  the  competence  of  the 

1  Such  steps  were  subsequently  confirmed  by  the  enabling  act. 


652     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

legislature  appears  to  be  limited  to  the  enactment  of  a  single 
general  law  for  the  incorporation  of  cities,  while  in  Texas  the  legis- 
lature is  competent  to  enact  any  number  of  general  laws  relating 
to  the  affairs  of  cities.  If  this  is  the  proper  construction  to  be 
placed  upon  the  home  rule  amendment  it  is  manifest  that  the 
cities  of  Texas  are  wholly  at  the  mercy  of  the  legislature  in  respect 
to  the  extent  of  powers  which  they  may  exercise.  Moreover,  the 
possibility  of  the  classification  of  cities  —  a  practice  which  would 
greatly  facilitate  the  subordination  of  home  rule  cities  to  legisla- 
tive domination  —  must  be  considered. 

In  spite  of  the  fact  that  the  power  of  the  legislature  to  over- 
ride the  home  rule  competence  of  cities  appears  to  be  practically 
without  limit,  it  is  worthy  of  remark  that  the  enabling  act  of  1913 l 
discloses  an  inclination  on  the  part  of  the  legislature  to  defer  with 
respect  to  the  spirit  of  the  home  rule  amendment  rather  than  a 
desire  to  assert  the  letter  of  its  own  authority.  While  the  statute 
is  somewhat  rambling  and  prolix  in  character  it  does  not  impose 
nearly  so  many  limitations  as  does  the  Michigan  home  rule  act.  It 
regulates  in  detail  the  procedure  for  the  exercise  of  charter-making 
powers,  this  procedure  being  very  similar  to  that  prescribed  in 
other  states.2  "A  charter  commission"  must  consist  of  "not  less 
than  fifteen  members  or  more  than  one  member  for  each  three 
thousand  inhabitants."  The  law  does  not  expressly  declare  what 
authority  shall  determine  the  exact  number  of  commissioners,  but 
presumably  this  matter  would  be  settled  by  the  legislative  authority 
of  the  city  or  by  the  voting  petitioners  according  to  whether  the 
one  or  the  other  of  these  authorities  initiated  the  movement  for 
the  selection  of  a  commission.  The  law  specifically  contemplates 
the  amendment  of  existing  legislative  charters  as  well  as  of  home 
rule  charters;3  and  this  would  seem  to  be  likewise  within  the 
contemplation  of  the  constitutional  amendment  itself. 

In  addition  to  the  tax-rate  limit  and  the  requirement  of  a  sink- 
ing fund  for  debts,  as  prescribed  by  the  constitution  itself,  the 
home  rule  city  is  prohibited  from  issuing  bonds  except  upon  the 
authorization,  by  a  majority  vote,  of  the  qualified  tax-paying 

1  Laws  of  Tex.,  1913,  ch.  147.  a  Supra,  116.  3  Supra,  614  ff. 


HOME  RULE  IN  TEXAS  653 

voters,  and  all  bonds  are  required  to  be  submitted  to  the  attorney- 
general  for  his  approval  and  to  the  state  comptroller  for  registra- 
tion "as  provided  by  the  state  law."  On  the  other  hand,  it  is 
well  worth  noting  that  the  home  rule  amendment  itself  apparently 
proposes  that  cities  may,  if  they  choose  to  do  so,  exercise  prac- 
tically complete  power  over  their  systems  of  taxation.  They 
"may  levy,  assess,  and  collect  such  taxes  as  may  be  authorized 
by  law  or  by  their  charters" 

So  far  as  the  general  scope  of  the  city's  powers  is  concerned 
the  enabling  act  expressly  declares  that  "by  the  provisions  of  this 
act  it  is  contemplated  to  bestow  upon  any  city  adopting  a  charter 
or  amendment  hereunder  the  full  power  of  local  self-government, 
and  among  the  other  powers  that  may  be  exercised  by  any  such 
city  the  following  are  hereby  enumerated  for  greater  certainty." 
After  an  exceedingly  comprehensive  detail  of  the  powers  which 
every  city  may  exercise  the  law  declares  that  "the  enumeration 
of  powers  hereinabove  made  shall  never  be  construed  to  preclude, 
by  implication  or  otherwise,  any  such  city  from  exercising  the 
powers  incident  to  the  enjoyment  of  local  self-government."  l 

In  the  light  of  certain  questions  which  have  arisen  in  the  other 
home  rule  states  which  we  have  considered,  attention  may  be 
called  to  a  few  of  the  powers  which  are  expressly  conferred  upon 
cities  by  this  enabling  act.  Thus  the  right  to  make  provision  for 
the  annexation  of  territory  is  expressly  granted.  In  this  connec- 
tion it  may  be  noted  that  the  Texas  amendment  does  not  employ 
the  phrase  "a  charter  for  its  own  government"  but  merely  de- 
clares that  cities  may  "adopt  and  amend  their  charters."  Since 
municipal  charters  commonly  contain  provisions  on  this  subject 
of  annexation  it  may  be  held  that  the  legislature  was  competent 
to  confer  the  power  to  control  this  matter.  On  the  other  hand, 
the  impolicy  of  vesting  in  a  city  the  complete  power  to  add  to 

1  It  is  further  provided  that  "all  powers  heretofore  granted  any  city  by  general 
law  or  special  charter  are  hereby  preserved  to  each  of  said  cities,  respectively,  and 
the  power  so  conferred  upon  such  cities,  either  by  special  or  general  law,  is  hereby 
granted  to  such  cities  when  embraced  in  and  made  a  part  of  the  charter  adopted 
by  such  city ;  and  provided  that,  until  the  charter  of  such  city  as  the  same  now 
exists  is  amended  and  adopted,  it  shall  be  and  remain  in  full  force  and  effect." 


654     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

its  own  territorial  jurisdiction,  perhaps  without  the  consent  of  the 
people  residing  upon  the  annexed  territory,  is  obvious.  And  this 
is  not  to  mention  the  difficulties  that  might  arise  from  any  attempt 
to  amalgamate  adjacent  cities  with  charters  containing  conflict- 
ing provisions  upon  this  subject. 

Practically  complete  power  is  vested  in  the  city  to  own  and 
operate  public  utilities  as  well  as  to  regulate  privately  owned 
utilities  as  to  rates  and  service.  Complete  control  is  also  conferred 
in  respect  to  streets  and  street  improvements.  The  city  appears 
to  be  able  to  exercise  extensive  police  powers,  although  it  is  pro- 
vided that  "no  ordinance  shall  be  in  conflict  with  the  state  law 
or  provide  a  penalty  in  conflict  therewith  save  and  except  in  the 
case  of  the  obstruction  and  incumbrance  of  the  public  streets 
alleys,  avenues,  and  boulevards  of  said  city."  The  local  charter 
may  provide  for  a  police  department  and  impliedly  the  charter 
may  regulate  all  matters  pertaining  to  such  department,  but 
there  is  no  mention  of  the  competence  of  a  city  to  create  a  police 
court.  Likewise  the  power  of  the  city  to  establish  a  health  de- 
partment is  expressly  confirmed.  Of  especial  significance  is  the 
grant  of  power  "to  provide  for  the  establishment  of  public  schools 
and  public  school  system  .  .  .  and  to  have  exclusive  control  over 
same  and  to  provide  such  regulations  and  rules  governing  the 
management  of  same  as  may  be  deemed  advisable"  and  "to  levy 
and  collect  the  necessary  taxes,  general  or  special,  for  the  support 
of  such  public  schools  and  public  school  system."  Under  this 
comprehensive  grant  of  powers  it  would  seem  that  the  entire  con- 
trol of  matters  pertaining  to  education  has  been  transferred  to  the 
cities  which  elect  to  exercise  the  powers  of  home  rule. 

It  is  too  early  to  declare  what  may  be  the  result  in  law  and  in 
practice  of  the  home  rule  scheme  as  established  by  constitutional 
amendment  and  the  elaborating  enabling  act  in  the  state  of  Texas. 
There  has  been  as  yet  no  judicial  interpretation  of  any  point  in 
connection  therewith.  The  constitutional  amendment  itself  is  by 
no  means  unambiguous  although,  as  has  already  been  noted,  it 
appears  to  vest  very  large  powers  in  the  legislature  either  to  make 
the  principle  of  home  rule  a  vital  and  comprehensive  reality  or  to 


HOME  RULE  IN  TEXAS  655 

transform  it  into  a  hollow  mockery.  While  the  legislature  has 
unquestionably  inaugurated  a  policy  of  great  liberality  toward 
cities,  it  remains  to  be  seen  what  the  ultimate  legislative  practice 
may  be.  The  nature  of  this  practice  will  determine  not  only  the 
existence  of  home  rule  as  a  fact  but  also,  in  considerable  measure 
at  least,  the  number  and  character  of  the  difficulties  which  the 
courts  will  encounter. 


CHAPTER  XVIII 
SOME  GENERAL  CONCLUSIONS 

MOST  if  not  all  of  the  legal  difficulties  that  have  arisen  in  the 
home  rule  states  have  been  discussed  in  the  preceding  chapters. 
There  remains  the  task  of  formulating  such  conclusions  as  may 
be  reasonably  deduced  from  a  brief  review  of  these  difficulties  as 
a  whole.  Surely  these  cannot  be  without  meaning  to  the  serious 
student  of  our  ever  evolving  institutions  or  to  the  practical  states- 
man who  participates  directly  in  their  molding.  These  conclu- 
sions may  be  presented  in  three  comprehensive  divisions,  the  first 
relating  to  the  machinery  of  home  rule,  the  second  to  grant  of 
home  rule  powers,  and  the  third  to  the  relation  between  the  powers 
of  cities  and  the  powers  of  the  state  legislature. 

The  Machinery  of  Home  Rule 

Our  national  constitution,  in  reserving  ."all  other  powers"  to 
the  states,  prescribes  no  machinery  whatever  for  the  exercise  of 
these  powers.  The  reason  for  this  omission  lies  in  facts  of  his- 
tory that  are  too  well  known  to  excuse  repetition.  Had  the 
federal  element  in  our  system  of  government  originated  in  an 
abstract  political  philosophy,  had  it  been  adopted  merely  because 
of  belief  in  its  soundness  as  a  principle  of  governmental  organiza- 
tion, had  it  been  introduced  in  place  of  an  existing  centralized 
system,  it  is  possible,  if  not  indeed  probable,  that  the  constitution 
which  established  the  federal  system  would  have  had  something 
to  say  concerning  the  machinery  by  which  the  states  might  exercise 
the  powers  reserved  to  them. 

As  it  is,  however,  the  states  have  been  left  to  their  own  devices 
in  this  matter.  In  one  respect  practically  complete  uniformity 

656 


SOME  GENERAL  CONCLUSIONS  657 

prevails  in  the  machinery  which  they  have  voluntarily  adopted; 
in  every  state  there  is  a  fundamental  law  which  establishes  the 
government  and  which  cannot  be  changed  at  the  pleasure  of  that 
government.  There  are,  however,  more  or  less  important  varia- 
tions in  the  machinery  which  the  several  states  have  themselves 
created  for  the  alteration  of  their  constitutions.  Moreover,  as 
every  student  of  our  government  knows,  the  machinery  which 
they  have  provided  has  sometimes  been  imperfect  or  incomplete, 
and  occasionally  constitutional  amendments  have  been  made,  as 
well  as  wholly  new  constitutions  put  into  effect,  in  somewhat 
irregular  fashion. 

Now  it  is  entirely  conceivable  that  power  over  their  own  affairs 
-  without  considering  for  the  moment  what  that  imports  — 
might  be  conferred  upon  cities  by  a  state  constitution  in  much 
the  same  way  as  power  over  state  affairs  is  reserved  to  the  states 
by  the  constitution  of  the  nation.  The  people  of  each  city  would 
then  be  compelled  to  work  out  for  themselves  an  appropriate 
machinery  for  the  exercise  of  these  powers.  It  may  be  assumed 
perhaps  that  the  custom  of  providing  a  charter  or  fundamental 
law  for  the  city  would  be  continued.  However  the  terms  may 
differ  in  origin  and  in  precise  definition,  the  "  constitution "  of  a 
state  and  the  " charter"  of  a  city  are  in  many  respects  similar 
instruments.  Each  is  the  fundamental  law  of  its  governmental 
unit.  Varying  greatly  in  the  matter  of  elaboration  and  detail, 
each  provides  an  organic  form  of  government  for  its  unit  and 
establishes  at  least  the  principal  agencies  of  that  government. 
Neither  can  be  altered  at  the  pleasure  of  the  government  which 
it  creates,  for  the  sanction  of  each  is  referable  to  a  superior  au- 
thority. This  authority  is  the  electorate  in  the  case  of  a  consti- 
tution. It  is  the  legislature  or  the  electorate  in  the  case  of  a 
municipal  charter.  The  problem  of  the  city,  therefore,  if  it  were 
simply  vested  with  power  over  its  own  affairs  in  general  terms, 
would  be  to  set  up  a  machinery  for  the  making  and  amending  of 
its  own  charter,  just  as  the  problem  of  the  states  was  to  create 
a  machinery  for  the  making  and  amending  of  constitutions.  In 
the  transition  from  legislative  control  (through  the  enactment  of 


658     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

• 

charter  statutes)  to  local  control  over  municipal  affairs,  where  no 
process  of  charter-making  was  prescribed  by  the  superior  au- 
thority which  granted  the  powers  of  home  rule,  it  is  obviou§  that 
the  electorate  of  a  city  would  be  compelled  to  act  in  an  irregular 
manner  until  such  time  as  they  had  incorporated  into  their  char- 
ter or  fundamental  law  a  regular  procedure  for  the  making  and 
amending  of  that  law. 

It  is  open  to  grave  question  whether  such  a  scheme  for  the 
establishment  of  a  system  of  home  rule  would  be  at  all  desirable. 
Moreover,  accustomed  as  the  courts  have  been  to  construe  the 
powers  of  cities  with  strictness  and  to  hold  the  corporate  authori- 
ties of  cities  to  a  rigid  compliance  with  the  letter  of  the  law,  it  is 
doubtful  whether  they  could  be  made  to  appreciate  the  close 
analogy  between  the  evolution  of  constitution-making  and  the 
evolution  of  charter-making.  It  is  more  than  likely  that  under 
such  a  grant  of  powers  as  we  are  here  discussing  the  city  would 
under  judicial  decree,  find  itself  incapable  of  acting  in  the  absence 
of  a  prescribed  machinery  for  acting. 

Certain  it  is  that  no  state  has  yet  conferred  home  rule  powers 
upon  cities  with  the  contemplation  that  the  people  of  the  several 
cities  would  evolve  their  own  machinery  for  the  complete  exercise 
of  those  powers  and  in  this  evolution  gradually  emerge  from 
irregularity  to  regularity.  The  home  rule  amendment  in  the  state 
of  Oregon  contained  a  grant  of  powers  that  was  apparently  of 
the  type  here  indicated.  It  is  nevertheless  difficult  to  say  how 
the  courts  of  that  state  would  have  construed  this  grant  for  pur- 
poses of  effectuation  had  not  an  initiative  and  referendum  amend- 
ment to  the  constitution  been  adopted  at  the  same  time.1  So 
far  as  practice  is  concerned  it  may  be  said  that  the  machinery  for 
'  the  exercise  of  home  rule  powers  by  cities  had  been  prescribed 
almost  wholly  by  the  state  itself.  Moreover,  this  machinery  has 
been  established  for  both  the  initial  and  the  subsequent  exercise 
of  such  powers.  This  raises  several  interesting  questions. 

1 .  ShaU  the  machinery  for  the  initial  exercise  of  home  rule  powers 
be  prescribed  by  the  constitution  or  by  statute?  It  will  be  recalled 

1  Supra,  549  ff. 


SOME  GENERAL  CONCLUSIONS  659 

that  the  home  rule  provisions  of  all  of  the  states  which  we  have 
considered,  with  the  exception  of  Oregon,  Michigan,  and  Texas, 
regulate  in  considerable  detail  the  procedure  that  must  be  fol- 
lowed in  the  making,  adopting,  and  amending  of  city  charters. 
Although  these  detailed  provisions  have  in  one  or  two  states  been 
held  to  be  self-executing,  to  require  no  supplementary  legislation 
whatever,1  it  is  simply  a  fact  that  not  one  of  them  has  been  com- 
pletely self -executing.  Every  one  of  them -makes  provision  for 
certain  elections  in  connection  with  the  exercise  of  the  home  rule 
powers  conferred.  Now  it  is  perfectly  plain  that  the  conduct  of 
elections  necessitates  the  regulation  of  numerous  details.  It 
would  be  ridiculous  to  incorporate  a  complete  set  of  these  details 
into  the  state  constitution.  They  are  everywhere  prescribed  by 
statute.  If  in  practice  cities  have  found  themselves  competent 
to  exercise  home  rule  powers  without  any  legislation  directly  sup- 
plementing the  constitutional  grant  of  powers,  this  has  been  simply 
because  the  existing  general  election  laws  contained  provisions 
adequate  for  their  exercise.  These  laws  were  none  the  less  sup- 
plementary and  the  exercise  of  home  rule  powers  was  none  the  less 
dependent  upon  them  because  of  their  previous  enactment. 
Moreover,  it  is  quite  conceivable  that  the  existing  election  laws 
of  a  state  might  not  contain  sufficiently  adequate  provisions  for 
the  conduct  of  such  elections  as  might  be  required  by  the  home 
rule  provision.  Where,  for  example,  the  provision  required  the 
nomination  of  candidates  for  a  charter  commission  or  board  of 
freeholders  upon  petition  and  the  placing  of  their  names  upon  the 
ballot  without  party  designations,  and  where  the  state  election 
laws  contained  no  provisions  regulating  the  filing,  examination, 
and  certification  of  such  petitions,  it  might  well  be  that  the  city 
would  be  powerless  to  act  without  additional  legislation. 

In  point  of  fact  the  enactment  of  legislation  in  direct  supple- 
ment of  the  home  rule  provisions  of  the  constitution  has  been 
found  necessary  or  desirable  in  most  of  the  home  rule  states,2 
although  it  is  true  that  some  of  this  legislation  was  necessitated 

1  Supra,  259  ff.,  562  ff. 

2  Supra,  146,  262,  400,  465,  564,  571,  589,  609,  648,  652. 


wA 

u 


660     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

by  constitutional  uncertainties  or  insufficiencies  that  might  easily 
have  been  avoided. 

In  Michigan  and  in  Texas  the  entire  machinery  for  the  exercise 
of  home  rule  powers  by  cities  is  a  matter  that  is  regulated  and 
controlled  by  statute.  The  constitutions  of  these  states  contain 
no  provisions  whatever  upon  this  subject  except  that  both  of  the 
provisions  contemplate  that  home  rule  powers  shall  be  exercised 
through  the  medium  of  elections  and  the  constitution  of  Texas 
forbids  charter  changes  to  be  made  oftener  than  once  in  two 
years.1  These  are  the  only  two  states  that  have  adopted  this 
plan.  Let  it  be  recorded  to  the  credit  of  the  legislature  in  each 
of  them  that  the  requirement  of  the  constitution  in  this  respect 
was  promptly  met.  In  neither  state,  moreover,  is  it  certain  that 
the  legislature  could  not  have  refused  to  act  in  this  regard  and 
yet  have  continued  to  provide  for  the  government  of  cities  by 
law.2  Whether  future  legislatures  in  these  states  will  make  in- 
roads upon  this  practice  remains  to  be  seen. 

It  must  be  recognized  that  unless  a  home  rule  provision  expressly 
prohibits  the  legislature  from  enacting  any  further  laws  for  the 
government  of  cities,3  it  is  quite  within  the  legislative  competence 
to  refuse  to  effectuate  the  home  rule  provisions  of  the  constitution 
wherever  supplementary  legislation  is  necessary.  The  degree  of 
temptation  that  might  be  presented  to  the  legislature  in  this 
matter  of  refusing  to  act  would  obviously  depend  somewhat  upon 
the  character  of  control  that  would  remain  in  its  hands  if  it  failed 
to  act.  If,  for  example,  it  could  continue  to  enact  special  laws  for 
the  government  of  cities  the  temptation  would  be  strong.  If,  on 
the  other  hand,  it  was  compelled  to  deal  with  cities  through  the 
medium  of  general  laws  without  classification,  the  temptation  to 
retain  control  over  them  would  obviously  be  greatly  modified, 
for  much  if  not  all  of  the  political  significance  of  such  control 
would  be  lost. 

On  the  whole  it  seems  reasonable  to  conclude  that  since  it  is 
practically  impossible  to  create  within  the  constitution  a  com- 
pletely self-executing  machinery  for  the  exercise  of  home  rule 

1  Supra,  604,  649.      2  Supra,  604-609,  650-652.      3  Supra,  252,  592  ;  infra,  676  ff. 


SOME  GENERAL  CONCLUSIONS  661 

powers,  the  constitution  itself  should  contain  only  such  elements 
in  respect  to  that  machinery  as  appear  to  be  of  fundamental  im- 
portance. If  the  legislature  is  to  exercise  the  power  of  supple- 
mentation in  any  respect,  it  would  seem  that  the  plan  followed  in 
Michigan  and  Texas,  under  which  the  legislature  regulates  prac- 
tically all  matters  pertaining  to  the  machinery  of  home  rule  is 
quite  as  satisfactory  as  the  plan  followed  in  most  other  states  of 
prescribing  the  home  rule  machinery  in  considerable  detail  in  the 
constitution.  Experience  thus  far  indicates  a  readiness  on  the  -^ 
part  of  the  legislature  to  perform  whatever  may  be  required  of  it 
in  the  matter  of  procedural  legislation. 

2.  Shall  the  power  to  regulate  the  machinery  for  the  initial  exer- 
cise of  home  rule  powers  be  vested  in  some  corporate  authority  of  the 
city?  It  will  be  recalled  that  in  a  few  instances  the  courts  have 
permitted  the  corporate  authorities  of  cities  to  regulate  by  ordi- 
nance certain  matters  in  connection  with  the  exercise  of  home  rule 
powers  which  were  apparently  provided  for  neither  by  the  consti- 
tution nor  by  statute.1  The  most  important  instance  of  this  was 
that  in  which  the  city  of  Portland  was,  by  a  somewhat  strained 
construction  of  the  constitution,  permitted  to  enact  an  ordinance 
regulating  the  exercise  of  initiative  and  referendum  powers,  there 
being  no  other  constitutional  machinery  provided  by  which  the 
grant  of  home  rule  could  be  realized.2  It  is  probable,  more- 
over, that  the  corporate  authorities  of  cities  have  in  practice 
regulated  certain  matters  pertaining  to  the  exercise  of  home  rule 
powers  and  that  these  regulations  have  not  been  challenged  before 
the  courts. 

It  is  a  fact,  however,  that  in  none  of  the  states  that  we  have  X 
considered  has  the  power  to  supplement  the  constitutional  ma- 
chinery for  the  initial  exercise  of  home  rule  powers  been  conferred 
generally  and  unmistakably  upon  the  existing  governmental 
authorities  of  cities.  This  plan  of  effectuating  the  grant  of  self- 
governing  powers  seems  to  have  received  scant  consideration. 
There  is  little  question  that  it  could  be  made  to  work.  There  is 
no  inherent  reason  why  the  principal  ordinance-making  authority 

i  Supra,  259,  411,  547,  562,  594.  J  Supra,  596. 


662     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

of  each  city,  instead  of  the  legislature  of  the  state,  could  not  be 
empowered  to  regulate  the  necessary  details  of  the  home  rule 

^machinery.  To  place  this  power  in  the  hands  of  a  designated 
corporate  authority  of  the  city  would  of  course  clothe  that  au- 

.  thority  with  competence  completely  to  frustrate  the  exercise  of 
home  rule  powers,  especially  where  such  authority,  as  has  not  in- 
frequently happened,  stood  opposed  to  the  introduction  of  govern- 
mental changes  that  were  being  agitated  in  the  city.  It  is  to  be 
noted,  however,  that  this  power  to  oppose  and  obstruct  changes 
in  fundamental  laws  is  placed  in  the  hands  of  existing  governmental 
authorities  throughout  our  entire  system,  except  in  those  states 
which  require  a  periodic  submission  to  the  voters  of  the'  proposition 
to  revise  these  fundamental  laws  and  those  which  permit  the  voters, 
through  the  medium  of  an  initiative  petition,  to  propose  amend- 
ments or  to  initiate  the  call  of  a  duly  constituted  body  to  draft  a 
revision  of  such  laws.  In  most  of  our  states  the  initiation  of  con- 
stitutional amendments  and  the  authority  to  set  in  motion  the 
machinery  for  a  constitutional  convention  are  within  the  discre- 
tion of  the  legislature.  Why  might  not  the  ordinance-making 
authority  of  the  city  be  placed  in  a  similar  position  with  reference 
to  the  amendment  and  revision  of  charters? 

As  another  means  of  securing  to  the  city  itself  complete  in- 
dependence of  the  legislature  in  the  matter  of  the  exercise  of  home 
rule  powers,  provision  might  be  made  for  the  appointment  of  an 
initial  charter  commission  by  some  existing  corporate  authority 
such  as  the  mayor.1  This  would  eliminate  the  necessity  of  con- 
ducting an  election,  the  detailed  conduct  of  which  would  have  to 
be  regulated  by  some  authority,  local  or  central.  The  election 
for  the  submission  of  the  charter  prepared  by  such  a  commission 
would  require  little,  if  any,  regulation;  and  the  council  of  the 
city  could  easily  be  placed  in  the  position  in  which  it  could  be 
compelled  by  mandamus  proceedings  to  provide  by  ordinance  for 
such  election.  It  is  probable  that  appointed  charter  commissions 

1  It  might  be  difficult  in  some  states  to  find  a  term  in  which  to  describe  a  cor- 
porate authority  which  would  be  found  in  every  city  and  which  would  at  the  same 
time  be  an  appropriate  authority  to  vest  with  such  power. 


SOME  GENERAL  CONCLUSIONS  663 

would  on  the  'whole  be  of  a  higher  grade  than  those  commonly  se- 
cured by  popular  election.  Even  so,  this  plan  also  would  be 
open  to  the  objection  that  the  appointing  authority  might  be 
obstructive ;  and  doubtless  in  particular  instances  it  would  be  far 
from  ideal. 

The  advisability  of  devising  some  means  to  secure  the  complete 
elimination  of  the  legislature  from  control  over  home  rule  procedure 
is  of  chief  importance  when  considered  in  relation  to  a  scheme  of 
home  rule  under  which  cities  may  exercise  an  option  of  adopting 
their  own  charters  or  of  remaining  under  legislative  control. 
This  scheme  is  discussed  below.  If  the  exercise  of  home  rule 
powers  is  in  effect  made  compulsory  upon  cities  and  the  legislature 
is,  as  in  Oregon,  absolutely  prohibited  from  enacting  any  laws 
governing  their  affairs,  the  plan  of  permitting  the  legislature  to 
regulate  the  machinery  of  home  rule  is  doubtless  as  satisfactory 
as  any  other. 

3.  Shall  the  home  rule  machinery  prescribed  by  the  constitution  or 
statute  be  binding  upon  the  city  which  has  once  exercised  home  rule 
powers  ?  The  problem  here  presented  is  somewhat  different  than 
that  which  has  just  been  discussed.  At  the  time  of  the  grant  of 
home  rule  powers  existing  cities  are  invariably  operating  under 
legislative  charters.  These  naturally  contain  no  provision  in 
respect  to  their  own  amendment  or  revision.  There  is,  however, 
no  practical  reason  why  a  city  in  framing  and  adopting  a  charter 
of  its  own  might  not  incorporate  in  that  charter,  following  the 
analogy  of  state  and  national  constitutions,  provisions  in  respect 
to  its  amendment  and  revision.  Certain  home  rule  charters  have 
included  provisions  of  this  kind.1  But  in  view  of  the  fact  that  the 
procedure  in  the  matter  of  making,  adopting,  and  amending 
charters  has  in  most  states  been  prescribed  in  some  detail  by  the 
constitution,  and  in  view  of  the  further  fact  that  the  provisions  on 
this  subject  have  not  by  the  terms  of  the  constitution  been  limited 
to  the  first  exercise  of  home  rule  powers  but  have  on  the  contrary 
usually  contemplated  a  continuous  application,  the  power  of 
cities  in  this  regard  has  been  somewhat  circumscribed. 

1  Supra,  411,424. 


664     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

If  the  theory  is  sound  that  a  city  should  enjoy  the  power  of 
making  its  own  charter,  there  seems  to  be  no  very  strong  reason 
why  the  city  should  not  also  determine  for  itself  the  manner  in 
which  and  the  conditions  under  which  that  charter  shall  be  altered, 
just  as  the  states  determine  for  themselves  the  manner  in  which 
and  the  conditions  under  which  their  constitutions  shall  be  altered. 
If  it  be  argued  that  a  city  might  bind  itself  to  too  rigid  require- 
ments in  this  matter,  it  may  be  answered,  first,  that  certain  of 
the  states  have  committed  the  same  mistake  in  the  matter  of  their 
constitutions,  and  second,  that  upon  principle  (if  the  soundness 
of  the  home  rule  principle  be  conceded)  this  is  the  city's  own 
affair. 

It  would  certainly  not  be  difficult  to  draft  a  constitutional  pro- 
vision which  would  confirm  to  the  city  the  power  to  create  within 
its  charter  the  process  for  amending  and  revising  that  charter. 
The  chief  danger  that  would  inhere  in  this  plan  has  already  been 
pointed  out.1  When  state  constitutions  have  contained  incom- 
plete or  imperfect  provisions  upon  the  subject  of  amendment  and 
revision  the  courts  have  been  fairly  liberal  in  permitting  the 
governmental  authorities  of  the  state  to  take  appropriate,  if  not 
strictly  legal,  action  looking  to  amendment  or  revision.  On  the 
other  hand,  accustomed  as  they  are  to  a  strict  construction  of  the 
charter  powers  of  cities,  they  might  be  wholly  unwilling  to  permit 
the  municipal  corporate  authorities  a  similar  liberality  of  action. 
A  city  which,  having  adopted  a  charter,  had  failed  to  incorporate 
therein  adequate  provisions  upon  the  subject  of  amendment  and 
_  revision  might  find  itself  in  a  straight- jacket.  If,  therefore,  the 
constitution  conferred  power  upon  cities  in  respect  to  this  matter, 
it  would  be  advisable  to  reserve  also  to  the  legislature  power  to 
provide  for  this  same  matter  by  law,  under  the  proviso  that  such 
law  should  apply  only  in  the  absence  of  adequate  charter  regulation. 

4'  Shall  the  exercise  of  home  rule  powers  be  made  optional  or  in 
effect  compulsory?  The  experience  of  most  home  rule  states  has 
been  such  as  to  indicate  that  for  many  years  after  the  grant  of 
home  rule  powers  certain  cities  will  not,  for  one  reason  or  another, 

1  Supra,  266. 


SOME  GENERAL  CONCLUSIONS 


665 


have  availed  themselves  of  the  privilege  conferred.  This 
sometimes  been  due  to  satisfaction  with  the  existing  charter  or  to 
an  apathetic  attitude  on  the  part  of  the  people.  It  has  sometimes 
also  been  due  to  the  inability  of  the  city  to  secure  a  charter  which 
the  voters  would  accept,  especially  where  extraordinary  majori- 
ties or  a  majority  of  those  voting  at  a  general  election  have  been 
required.  Whatever  may  have  been  the  contributing  causes,  it 
seems  at  least  open  to  debate  whether  such  cities  should  be  com- 
pelled to  remain  under  completely  static  charters  until  such  time 
as  they  secured  charters  of  their  own  making.  In  Missouri  this 
problem  has  not  arisen  because  both  of  the  cities  that  were  em- 
powered to  adopt  charters  exercised  this  power  as  soon  as  possible. 
In  Oregon  a  city  must  exercise  home  rule  powers  or  have  its  char-  0^ 
ter  remain  absolutely  without  alteration.1  In  Michigan  and  in 
Texas  the  situation  has  been  practically  the  same,  although  it  is 
by  no  means  certain  that  the  constitution  enforces  it.2  In  all  the  \f  ^* 
other  home  rule  states  there  is  no  question  that  the  legislature 
may  enact  laws  for  the  government  of  cities  which  do  not  them- 
selves elect  to  exercise  charter-making  powers.  These  laws  must, 
however,  be  general  in  their  application  to  classes  of  cities.  In 
California  this  was  true  even  though  the  literal  wording  of  the 
constitution  clearly  indicated  the  contrary.3 

There  is  no  doubt  that  a  very  great  amount  of  confusion  has 
arisen  in  the  home  rule  states  by  reason  of  the  failure  of  those 
who  drafted  the  provisions  of  the  constitution  upon  this  subject 
to  recognize  the  plain  fact  that  in  all  probability  some  cities  will 
exercise  the  powers  conferred  and  others  will  not.  This  of  itself 
will  result  in  the  establishment  of  two  classes  of  cities  —  (1)  cities 
under  home  rule  charters,  and  (2)  cities  under  legislative  charters.4 
Most  of  the  constitutions  have  attempted  to  set  forth  the  degree 
of  control  which  the  legislature  might  exercise  over  cities  without 
any  reference  whatever  to  this  classification,  which  was  almost 
sure  to  come  about  in  practice. 

Now  it  seems  obvious  that,  unless  the  Oregon  plan  is  followed, 
the  extent  of  control  over  cities  by  the  legislature  should  be  de- 

1  Supra,  593.         2  Supra,  604-609  ;  650-652.         3  Supra,  252.          4  Supra,  632. 


666     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

termined  with  specific  reference  to  this  classification.  It  may 
well  be  a  very  sensible  idea  to  retain  the  power  of  the  legislature 
to  amend  and  revise  the  charters  of  cities  which  do  not  adopt 
charters  of  their  own,  this  power  being  placed  under  such  limita- 
tions as  may  seem  advisable,  such,  for  example,  as  the  require- 
ment of  general  laws  for  classes  of  cities  created  upon  the  basis  of 
population,  as  in  many  states,  or  the  subjection  of  special  city 
laws  to  a  veto  of  the  corporate  authorities,  as  in  New  York.1  On 
the  other  hand,  it  is  little  short  of  ridiculous  to  subject  home  rule 
cities  to  the  application  of  such  laws.  This  plan  can  only  result 
in  rendering  the  home  rule  provisions  of  the  constitution  largely 
a  farce,  as  they  are  in  fact  under  the  operation  of  the  plan  in  such 
states  as  Washington 2  and  Minnesota.3  It  would  certainly  greatly 
simplify  the  legal  difficulties  arising  out  of  the  grant  of  home  rule 
powers  if  the  power  of  the  legislature  over  cities  remaining  under 
legislative  charters  should  be  declared  to  be  one  thing  and  the 
power  of  the  legislature  over  home  rule  cities  should  be  declared 
to  be  another.  Moreover,  it  is  easy  to  see  that  the  very  power  of 
the  city  to  translate  itself  by  its  own  action  from  the  legislative 
charter  class  to  the  home  rule  class  would  have  a  salutary  effect 
upon  the  legislature.  Indeed  it  might  transpire  that  the  needs  of 
cities  in  the  matter  of  government  would  be  met  by  the  legislature 
in  a  perfectly  satisfactory  manner,  and  that  there  would  be  no 
necessity  for  an  actual  exercise  of  the  home  rule  powers  conferred. 
It  is  a  fact,  however,  that  in  no  state  has  a  constitutional  provision 
as  yet  been  drawn  with  this  classification  of  cities  in  mind. 

In  connection  with  what  has  been  said  above,  however,  it  is 
clear  that  if  this  classification  were  expressly  provided  for  in  the 
constitution,  and  'if  the  option  were  clearly  presented  to  cities  to 
frame  charters  of  their  own  or  to  remain  under  charters  of  legis- 
lative origin  and  subject  to  legislative  amendment  and  revision, 
it  would  be  necessary  to  provide  a  machinery  for  the  exercise  of 
charter-making  powers  by  cities  which  would  not  be  dependent 
upon  the  enactment  of  supplementary  laws  by  the  legislature. 
Otherwise  the  legislature  might  by  simple  inaction,  very  easily 

1  Supra,  101  ff.  2  Supra,  400,  455.  »  Supra,  493  ff. 


SOME  GENERAL  CONCLUSIONS  667 

nullify  the  entire  optional  feature  of  the  scheme.  Unless  it  should 
prove  possible  to  devise  a  constitutional  provision  that  would  be 
completely  self-executing,  it  would  be  necessary  to  confer  upon 
the  corporate  authorities  of  cities  the  power  to  supplement  the 
provisions  of  the  constitution  by  ordinance. 

5.  Shall  the  city  be  required  to  frame  and  adopt  an  entirely  new 
charter  or  shall  it  be  permitted  to  amend  its  existing  legislative  char- 
ter f     The  pros  and  cons  of  argument  upon  this  point  have  already 
been  presented  x  and  need  not  be  reiterated  here.     Oregon,  Michi- 
gan, and  Texas  are  the  only  states  that  permit  cities  to  amend 
their  charters  prior  to  the  adoption  of  a  charter  of  their  own  making. 
Whether  the  one  or  the  other  plan  should  be  followed  is  open  to 
debate.     The  practice  in  the  three  states  mentioned,  as  compared 
with  other  home  rule  states,  does  not  perhaps  justify  a  categorical 
judgment  in  the  matter. 

6.  Shall  either  the  legislature  or  the  governor  be  given  a  veto  power 
over  charters  and  charter  amendments?     It  will  be  recalled  that  in 
California  the  legislature  is  required  to  reject  or  adopt  without 
power  of  amendment  every  charter  and  charter  amendment  sub- 
sequent to  its  ratification  at  the  local  polls.     This  feature  of  the 
home  rule  machinery  in  California  has  in  practice  been  a  mere 
formality.     It  certainly  has  had  no  apparently  effective  use.     On 
the  other  hand  it  has  given  rise  to  a  number  of  difficult  legal  ques- 
tions in  the  courts.2     In  Oklahoma  and  Arizona  the  governor  of 
the  state  is  given  an  absolute  veto  over  charters  and  charter  amend- 
ments.    The  Michigan  home  rule  statute  gives  the  governor  a 
suspensive  veto.     These  provisions  will  doubtless  prove  as  wholly 
useless  as  the  California  provision.      The   political   psychology 
of  the  situation  seems  to  have  escaped  the  notice  of  those  who 
drafted  these  provisions.     It  is  perfectly  manifest  that  govern- 
mental authorities  will  hesitate  to  impose  their  negative  upon  acts 
which  have  already  been  directly  ratified  at  the  polls.     It  seems 
reasonable  to  conclude  that  provisions  of  this  kind  have  not 
justified  themselves  in  experience  and  are  scarcely  supportable 
even  upon  theory. 

1  Supra,  616-618.  *  Supra,  Ch.  VII. 


668  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

The  Grant  of  Home  Rule  Powers 

In  respect  to  the  terms  in  which  the  grant  of  home  rule  powers 
is  made  two  points  are  of  especial  importance.  The  first  of  these 
arises  out  of  the  necessity  of  establishing  a  clear  relation  between 
the  substantive  powers  of  self-government  that  are  granted  and 
the  adjective  power  of  charter-making.  The  second  arises  out 
of  the  necessity  of  defining  the  scope  of  powers  that  are  intended 
to  be  granted. 

1.  Shall  the  substantive  powers  of  home  rule  be  simply  included 
by  implication  in  the  apparently  adjective  grant  of  power  to  frame  a 
charter  ?  Most  of  the  home  rule  provisions  grant  to  cities  merely 
the  charter-making  power.  The  actual  subjects-matter  which 
are  by  reason  of  this  grant  placed  within  the  competence  of  the 
city  to  control  depend  wholly  upon  the  implications  of  the  term 
"charter."  These  implications  are  naturally  more  or  less  in- 
definite. They  are  no  more  indefinite,  however,  than  the  implica- 
tions of  such  an  unprecise  phrase  as  the  "  powers  of  local  self- 
government,"  employed  in  Ohio  and  recently  in  Colorado. 
Unless  it  is  intended  that  the  city  may  exercise  at  least  certain 
powers  of  self-government  without  the  necessity  of  exercising  the 
charter-making  or  charter-amending  power,  it  is  certain  that  the 
power  to  adopt  and  amend  a  ''charter  for  its  own  government" 
confers  quite  as  much  substantive  power  upon  the  city  as  does  the 
grant  of  authority  to  exercise  the  "  powers  of  local  self-government" 
through  the  sole  medium  of  the  charter-making  or  charter-amend- 
ing power. 

There  would  seem  to  be  little  objection  to  conferring  the  sub- 
stantive power  of  self-government  as  well  as  the  adjective  power 
of  charter-making,  provided  the  two  are  properly  correlated  as 
substantive  and  adjective.  Likewise  there  would  seem  to  be 
little  to  be  gained,  since  the  substantive  is  so  manifestly  implied 
in  the  adjective.  But  where  the  two  powers  are  granted  separately 
it  is  of  high  importance  in  the  interest  of  legal  certainty  that  the 
power  to  adopt  and  amend  the  municipal  charter  should  be  granted 
to  the  end  that  the  powers  of  self-government  may  be  realized ; 


SOME  GENERAL  CONCLUSIONS  669 

or,  to  put  it  conversely,  that  the  powers  of  self-government  should 
be  clearly  made  dependent  for  realization  upon  the  exercise  of  the 
charter-making  power. 

This  appears  almost  too  trite  for  remark.  A  city  is  a  corporate 
entity  operating  usually  under  a  charter  of  limited  powers  and  of 
many  details  and  restrictions.  Few  of  its  powers  are  conferred 
upon  the  corporate  entity  as  such.  They  are  vested  for  the  most 
part  in  specifically  designated  corporate  authorities.  The  city  as 
such  can  act  only  through  the  agency  of  these  established  authori- 
ties. From  time  out  of  mind  the  courts  have  held  these  authori- 
ties specifically,  and  in  consequence  the  city  as  such  generally, 
to  a  more  or  less  rigid  accountability  to  the  letter  of  their  dele- 
gated competence.  When,  therefore,  under  such  circumstances 
as  these,  the  city  as  a  corporate  entity  is  suddenly  vested  with 
full  powers  of  local  self-government  two  questions  are  presented : 
Which  of  the  existing  corporate  authorities  can  assume  to  act  for 
the  city  beyond  the  written  letter  of  his  competence?  And  what 
is  to  become  of  the  charter  of  the  city  if  all  powers  of  self-govern- 
ment are  to  be  regarded  as  being  vested  in  the  corporate  authori- 
ties? 

These  questions,  as  we  have  seen,  are  neither  fanciful  nor  specu- 
lative. They  have  arisen  in  both  California 1  and  Ohio 2  and 
have  been  trenched  upon  in  Washington,3  Oregon,4  and  Michigan.5 
In  spite  of  the  obvious  commonplaceness  of  the  facts  and  rules 
of  law  out  of  which  they  originate,  the  framers  of  home  rule  pro- 
visions continue  to  blunder  blindly.  It  is  simply  an  axiom  of 
home  rule  that  the  grant  of  substantive  powers  must  not  be  sepa- 
rated from  the  adjective  process  prescribed  for  the  exercise  of 
such  powers.  Either  the  one  must  be  allowed  to  imply  the  other 
or,  if  both  are  expressed,  unmistakable  correlation  must  be  estab- 
lished between  them. 

2.  Shall  the  grant  of  home  rule  powers  be  made  only  in  general 
terms  or  shall  there  be  a  descriptive  enumeration  in  addition  to  such 
general  grant?  No  more  obvious  conclusion  can  be  drawn  from 

1  Supra,  259  ff.,  322  ff.  2  Supra,  625  ff.  3  Supra,  403  ff.,  416  ff. 

4  Supra,  594  ff.  •  Supra,  613  ff. 


670     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

the  study  of  the  difficulties  that  have  arisen  in  the  home  rule 
states  than  that  the  grant  of  powers  to  cities  in  general  terms  has 
been  the  origin  of  the  chief  complications  that  have  arisen. 
Whether  the  city  is  empowered  to  adopt  a  "charter  for  its  own 
government"  or  to  exercise  "powers  of  self-government"  through 
the  medium  of  such  a  charter,  it  is  manifest  that  the  terms  of  the 
grant  do  not  lend  themselves  to  precise  definition.  Nor  is  it  pos- 
sible that  precision  may  be  secured  by  the  employment  of  any 
other  general  phrase.  It  is  a  plain  fact  that  under  any  general 
phrase  that  makes  a  direct  constitutional  grant  of  home  rule  the 
scope  of  powers  actually  conferred  must  be  defined  by  the  courts. 
This  means  uncertainty,  delay,  and  expensive  litigation. 

As  we  have  had  frequent  occasion  to  note,  this  question  con- 
cerning the  scope  of  the  powers  of  a  home  rule  city  is  presented 
in  two  different  connections.  It  sometimes  arises,  without  any 
attendant  complication,  as  a  result  of  the  existence  of  a  conflicting 
state  law.  In  this,  its  simplest,  form  the  question  involves  merely 
a  consideration  of  whether  this  or  that  function  is  properly  em- 
braced within  the  activities  of  a  city  as  such.  More  frequently, 
however,  the  question  involves  also  a  consideration  of  superiority 
and  inferiority  as  between  a  charter  provision  and  a  state  law. 
In  this  form  the  question  is  no  longer  merely  as  to  the  competence 
of  the  city.  It  concerns  the  competence  of  the  city  in  relation 
to  the  competence  of  the  state  legislature.  Whether  the  question 
of  the  scope  of  home  rule  powers  is  offered  in  one  or  the  other  of 
these  forms  depends  usually  upon  whether  the  state  legislature 
has  or  has  not  acted  in  respect  to  the  subject-matter  under  con- 
sideration. It  is  somewhat  difficult  to  consider  the  problem  of 
the  grant  of  powers  as  a  problem  separate  from  that  of  the  rela- 
tion between  this  grant  and  the  powers  that  are  reserved  to  the 
state  legislature.  The  two  problems  are  nevertheless  somewhat 
separable,  and  for  the  sake  of  clearness  the  question  of  the  relation 
between  state  laws  and  charter  provisions  is  considered  below  as 
a  question  distinct  in  itself. 

The  difference  between  the  city  as  an  organization  for  the  satis- 
faction of  local  needs  and  as  an  agency  for  the  performance  within 


SOME  GENERAL  CONCLUSIONS  671 

its  jurisdiction  of  state  functions  is  a  distinction  which,  however 
varying  in  its  aspects,  has  nevertheless  been  introduced  into 
many  branches  of  the  law  of  municipal  corporations.  This  dis- 
tinction has  naturally  been  applied  also  in  the  cases  which  have 
involved  questions  of  the  scope  of  powers  included  within  the 
grant  of  home  rule.  Speaking  generally,  however,  it  must  be  said 
that  the  courts  have  in  the  home  rule  cases  applied  this  distinc- 
tion in  such  wise  as  to  permit  a  fairly  wide  latitude  of  action  on 
the  part  of  the  city  in  its  so-called  capacity  as  an  organization  for 
the  satisfaction  of  local  needs.  Indeed  the  latitude  permitted  in 
these  cases  has  extended  the  concept  of  the  city's  local  capacity 
far  beyond  its  limits  as  applied  in  other  branches  of  the  law  of 
municipal  corporations.  Even  so,  the  question  has  been  pre- 
sented in  one  form  or  another  as  to  whether  the  grant  of  home 
rule  included  the  power  to  regulate  matters  pertaining  to  taxation,1 
eminent  domain,2  police,8  police  courts,4  health,6  education,6  the 
annexation  and  separation  of  territory,7  streets,8  the  ownership  of 
public  utilities,9  the  regulation  of  privately  owned  public  utilities,10 
municipal  elections,11  the  presentation  of  claims  against  the  city,12 
and  the  grant  of  jurisdiction  in  respect  to  municipal  affairs  to 
courts  forming  a  part  of  the  regular  judicial  organization  of  the 
state.13  Moreover,  as  we  have  seen,  question  in  respect  to  many 
of  these  matters  has  arisen  recurrently  from  state  to  state.  From 
this  fact  alone,  as  well  as  from  the  wide  variations  in  the  views 
expressed  by  the  courts,  it  is  certain  that  doubt  exists  as  to  whether 
or  not  power  to  control  such  matters  as  these  is  or  is  not  em- 
braced within  the  grant  of  home  rule  powers. 

*  Supra,  127,  173,  277,  340,  432,  535,  610,  653. 

2  Supra,  174,  336,  429,  471,  485,  536.  8  Supra,  133,  142,  255,  371,  467,  654. 

«  Supra,  195,  206,  241,  373,  400,  490,  553,  654. 
8  Supra,  286,  343,  453,  470,  654. 

•  Supra,  295,  344,  371,  505,  585,  610,  654. 

7  Supra,  146,  269,  333,  407,  474,  557,  600,  611,  653. 

8  Supra,  153,  156,  190,  271,  308,  337,  485,  644. 

9  Supra,  355,  499,  567,  610,  621,  654. 

»  Supra,  149,  186,  308,  345,  436,  572,  644. 

11  Supra,  141,  182,  233,  259,  425,  428,  541,  583,  602,  610,  635. 

«  Supra,  165,  340,  445,  487.  "  Supra,  193,  386,  426,  473. 


672  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

It  would  assuredly  be  a  difficult  task  to  undertake  within  a  con- 
stitutional grant  of  home  rule  to  enumerate  specifically  the  com- 
plete list  of  powers  that  might  be  exercised  by  cities.  Would  it 
not,  however,  be  not  only  possible  but  also  highly  desirable  to 
add  to  the  general  grant  of  power  over  local  affairs  a  specific 
enumeration  in  respect  to  the  matters  above  indicated  ?  In  other 
words,  would  it  not  be  the  part  of  wisdom  to  take  as  a  basis  for 
a  partial  enumeration  of  the  powers  to  be  conferred  the  list  of 
powers  in  respect  to  which  actual  difficulties  have  arisen  in  the 
home  rule  states  and  have  been  repeatedly  presented  to  the 
courts  for  solution? 

It  will  be  recalled  that  both  California  and  Colorado  have 
adopted  the  practice  of  amending  their  constitutional  provisions 
so  as  to  confer  specific  powers  of  home  rule  after  such  powers  had 
been  held  by  the  courts  to  be  not  embraced  within  the  general 
undefined  grant.  In  other  words,  these  states  arrived  at  the 
policy  of  an  enumeration  supplementing  the  general  grant  after 
a  lengthy  travail  of  doubt,  disappointment,  and  harassing  litigation. 
Why  should  this  travail  be  necessary  ?  The  self-governing  powers 
that  a  municipality  should  enjoy  are  far  more  a  matter  of  policy 
than  of  law.  Why  should  the  courts  by  reason  of  the  vagueness 
of  the  constitutional  terms  employed  be  compelled  to  determine 
these  questions  of  policy?  Vagueness  and  generality  may  have 
been  excusable  in  the  beginning;  but  the  experience" of  the  home 
rule  states  now  points  the  way.  Certain  questions  are  sure  to 
arise  under  any  general  grant.  The  list  of  these  questions  is 
formidable.  They  are  written  clearly  in  the  books.  The  framers 
of  a  constitutional  provision  granting  home  rule  have  at  this  late 
day  not  the  smallest  justification  for  ignoring  them.  They  have 
no  right  to  cast  the  cities  of  the  state  into  a  maelstrom  of  doubt 
and  to  impose  upon  the  courts  the  onerous  burden  of  resolving 
this  doubt  by  piecemeal  decree. 

It  is  not  meant  to  imply  that  every  doubt  that  has  arisen  con- 
cerning the  content  of  the  general  grant  should  by  express 
declaration  of  the  constitution  be  resolved  in  favor  of  the  city. 
As  has  been  said,  whether  this  or  that  power  lying  in  the  twi- 


SOME  GENERAL  CONCLUSIONS  673 

light  zone  between  matters  of  state  and  matters  of  local  concern 
should  or  should  not  be  conferred  upon  the  city  is  wholly  a  ques- 
tion of  policy.  The  supplementary  enumeration  here  referred  to 
might  and  probably  should  include  negations  as  well  as  grants  of 
power.  In  respect  to  certain  of  these  "doubtful"  matters,  such, 
for  example,  as  control  over  privately  owned  public  utilities,  a 
division  of  power  might  be  made  between  the  city  and  the  state 
government.  The  point,  and  the  only  point,  to  be  made  is  that 
the  home  rule  provision  of  a  constitution  should  deal  specifically 
and  emphatically  with  the  entire  list  of  these  moot  questions, 
denying  or  confirming  them  to  the  city  as  the  political  wisdom 
of  the  framers  may  dictate.  The  silence  of  the  constitution  means 
uncertainty.  As  between  a  narrow  but  certain  grant  of  home 
rule  and  a  possibly  broad  but  uncertain  grant  there  is  small 
justification  for  hesitation. 

Relation  between  the  Powers  of  Cities  and  the  Powers  of  State 

Legislatures 

In  the  drafting  of  a  constitutional  provision  granting  home  rule 
to  cities  perhaps  the  most  difficult  problem  is  that  of  establishing 

.a  clear  line  of  demarcation  between  those  subjects-matter  which 
cities  may  regulate  and  control  in  a  manner  that  may  be  contrary 

(to  the  provisions  of  state  laws  and  those  in  respect  to  which  state 
laws  will  supersede  the  provisions  of  a  home  rule  charter.  The 
subjects-matter  that  have  given  rise  to  this  problem  are  those 
that  are  commonly  dealt  with  in  charters  of  legislative  origin. 
No  city  has  ever  attempted  to  draw  unto  itself  the  complete  powers 
of  the  state.  By  common  understanding  such  general  subjects  as 
crime,  domestic  relations,  wills  and  administration,  mortgages, 
trusts,  contracts,  real  and  personal  property,  insurance,  banking, 
corporations,  and  many  others  have  never  been  regarded  by  any 
one,  least  of  all  by  the  cities  themselves,  as  appropriate  subjects 
of  local  control.  No  city  has  been  so  foolhardy  as  to  venture 
generally  into  any  one  of  these  fields  of  law.  It  has  simply  been 
universally  accepted  that  these  matters  are  strictly  of  "  state 


674     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

concern."  But  a  considerable  number  of  matters  that  are  fre- 
quently if  not  invariably  regulated  in  whole  or  in  part  by  munic- 
ipal charters  granted  by  the  legislature  are  also  in  legal  theory 
as  well  as  in  popular  concept  regarded  as  matters  of  state  rather 
than  of  local  concern.  The  list  of  such  matters  is  indicated  above 
in  the  discussion  of  the  terms  in  which  the  grant  of  self-governing 
powers  should  be  made.  What  was  said  in  connection  with  that 
discussion  may  be  repeated  here;  to  wit,  that  the  problem  of 
establishing  a  proper  relation  of  superiority  and  inferiority  as 
between  charter  provisions  and  state  laws  is  closely  related  to 
the  problem  of  setting  forth  the  grant  of  home  rule  powers  in 
sufficiently  explicit  terms. 

The  powers  conferred  upon  cities  have  been  made  expressly 
"subject  to"  certain  superior  laws  in  all  of  the  home  rule  states 
except  Colorado.  In  this  latter  state,  in  spite  of  the  silence  of 
the  constitution,  the  courts  did  not  hesitate  to  read  a  limitation 
of  this  kind  into  the  home  rule  provision.1  This  feature  of  the 
several  constitutional  provisions  is  worthy  of  the  most  careful 
analysis  and  consideration. 

1.  Shall  home  rule  powers  be  made  expressly  "subject  to"  the 
other  provisions  of  the  constitution  f  In  every  home  rule  provision 
that  we  have  considered,  except  those  of  Colorado,  Michigan,  and 
Ohio,  the  exercise  of  home  rule  powers  is  specifically  subordinated 
to  the  other  provisions  of  the  constitution.  It  is  not  easy  to 
understand  the  necessity  for  an  express  declaration  of  this  kind 
unless  it  is  intended  that  the  constitutional  grant  of  home  rule 
powers  shall  be  placed  in  a  position  of  peculiar  subordination  to 
the  other  clauses  of  the  constitution.  It  is  a  well-known  principle 
of  constitutional  construction  that  the  several  provisions  of  the 
fundamental  law  of  a  state  must  be  read  together,  and  that  each 
must  be  given  its  meaning  in  the  light  of  the  others.  There  are 
occasionally  apparent  conflicts  between  clauses.  In  such  cases 
it  is  the  duty  of  the  courts  to  read  these  conflicts  out  of  the  con- 
stitution by  giving  to  each  clause  the  fullest  possible  meaning 
that  can  be  given  in  the  light  of  the  other.  An  express  declara- 

1  Supra,  543  ff . 


SOME  GENERAL  CONCLUSIONS  675 

tion  to  the  effect  that  the  home  rule  provision  shall  be  "  subject 
to"  other  provisions  might  conceivably  operate  in  cases  of  con- 
flict to  compel  the  courts  to  give  complete  effect  to  another  pro- 
vision of  the  constitution,  even  at  the  sacrifice  of  this  or  that  element 
of  home  rule.  In  other  words,  the  grant  of  home  rule  would  have 
to  be  strictly  construed  in  the  light  of  other  provisions  of  the  con- 
stitution and  preference  given  to  the  latter  in  all  cases  of  doubt. 

In  plain  point  of  fact  the  courts  have  not  always  given  such  a 
construction  to  the  requirement  that  the  home  rule  provisions 
shall  be  " subject  to"  the  constitution.  Indeed  they  appear  to 
have  construed  the  home  rule  provisions,  where  the  binding  force 
of  another  constitutional  provision  was  urged,  in  practically  the 
same  manner  that  they  have  construed  any  other  alleged  con- 
stitutional contradiction.  In  some  cases  they  have  sacrificed 
home  rule  to  the  express  declarations  of  the  constitution  upon  the 
subject  at  issue.  In  other  cases  they  have  sustained  a  right  of 
home  rule  in  spite  of  some  other  provision  of  the  constitution  to 
the  contrary.  If  this  is  the  meaning  —  and  so  it  appears  to  be 
in  the  opinion  of  the  courts  —  that  is  to  be  given  to  the  phrase 
"subject  to  the  constitution, "  it  is  perfectly  patent  that  the  phrase 
is  wholly  superfluous.  And  so  in  fact  it  seems  to  be.  Whether 
or  not  the  letter  of  some  other  section  of  the  constitution  is  to 
be  applied  by  the  courts  to  the  narrowing  of  the  home  rule  grant 
depends  much  more  largely  upon  the  mental  predilections  of  the 
judges  than  upon  a  rigid  application  of  the  peculiar  requirement 
that  the  home  rule  provision  shall  be  "subject  to  the  constitution/' 

However,  all  this  is  of  comparatively  negligible  importance. 
The  point  of  real  significance  is  that  other  clauses  of  the  constitu- 
tion are  so  frequently  raised  to  sustain  the  contention  that  this 
or  that  matter  is  not  a  proper  subject  of  regulation  by  a  home  rule 
charter,  or  the  more  frequent  contention  that  a  state  law  enacted 
in  pursuance  of  some  other  constitutional  clause  controls  a  home 
rule  charter  in  this  or  that  respect.  This  situation  undoubtedly 
results  in  large  part  from  the  fact  that  the  home  rule  provision  is 
not  properly  compared  and  correlated  with  the  other  provisions 
of  the  constitution.  In  order  to  avoid  difficulties  of  this  kind 


676     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

every  section  of  a  constitution  should  be  carefully  studied  in  com- 
parison with  a  home  rule  proposal.  If  the  general  grant  of  self- 
governing  powers  were  accompanied  by  an  enumeration  of  moot 
powers  it  would  be  a  matter  of  no  great  difficulty  to  incorporate 
within  this  enumeration  clauses  that  would  establish  complete 
harmony  with  all  other  provisions  of  the  constitution. 

2.  Shall  the  provisions  of  home  rule  charters  be  made  subject  to 
"general  laws"?  In  one  form  or  another  the  constitutions  of  all 
the  home  rule  states,  except  Colorado,  Oregon,  and  presumably 
Ohio,  declare  that  the  self-governing  powers  conferred  upon  cities 
shall  be  "subject  to  the  general  laws  of  the  state."  The  Cali- 
fornia provision  expressly  declares  that  the  powers  of  cities  shall 
be  subject  to  general  laws  "  except  in  municipal  affairs."  In 
these  four  states,  therefore,  there  can  be  little  doubt  that  charter 
provisions  are  not  subject  to  laws  relating  to  matters  of  local 
concern  even  though  such  laws  are  of  general  application  to  cities. 
In  the  other  home  rule  states,  however,  in  which  the  subordination 
of  charters  to  the  control  of  state  laws  is  sought  to  be  accom- 
plished by  the  use  of  the  vague  phrase  " general  laws,"  the  ques- 
tion presents  itself  whether  the  phrase  means  laws  of  general  as 
distinguished  from  local  concern  or  laws  of  general  as  distinguished 
from  local  application,  or  whether  both  of  these  constructions- 
may  be  placed  upon  the  phrase.  In  a  general  way  it  may  be  said 
that  this  phrase  has  more  usually  been  construed  in  these  other 
states  to  mean  laws  of  general  concern.  In  fact  in  practically  all 
of  the  states  this  is  at  least  one  of  the  constructions  that  has  been 
put  upon  it.  But  in  Missouri  the  status  of  the  law  upon  this  sub- 
ject is  somewhat  in  chaos ;  in  Washington  and  in  Minnesota  the 
phrase  has  been  construed  to  mean  laws  of  general  application  as 
well  as  of  general  concern ;  while  in  Michigan  and  in  Texas  there 
can  be  no  question  that  the  legislature  has  the  power  to  enact  a 
law  of  general  application  to  the  cities  of  the  state  even  though 
such  law  relates  wholly  to  a  matter  of  local  concern. 

Now  it  seems  perfectly  obvious  that  no  real  necessity  exists  for 
vagueness  and  uncertainty  in  respect  to  this  matter.  To  those 
who  believe  that  the  powers  of  home  rule  should  be  a  matter  of 


SOME  GENERAL  CONCLUSIONS  677 

direct  constitutional  grant,  wholly  removed  from  the  interpretative 
discretion  of  the  legislature,  there  is  obvious  danger  in  prescribing 
that  the  exercise  of  these  powers  -shall  be  "  subject  to  general 
laws."  If  it  is  the  purpose  of  the  drafters  of  a  home  rule  provi- 
sion to  subject  charters  to  the  control  of  legislative  statutes  in 
matters  of  state  concern,  and  to  leave  the  definition  of  such  matters 
to  the  courts,  there  seems  to  be  no  reason  why  the  phrase  "laws 
relating  to  matters  of  state  concern"  should  not  be  employed. 
If,  on  the  other  hand,  it  is  their  purpose  to  subject  charters  to  the 
control  of  state  laws  of  general  application  to  cities  even  though 
they  deal  with  matters  of  strictly  local  concern,  it  would  seem 
that  the  phrase  "laws  of  general  application"  should  be  employed, 
and  that  this  phrase  should  be  properly  qualified  by  specification, 
if  it  is  intended  that  these  laws  shall  be  of  absolutely  uniform 
application  to  all  the  cities  of  the  state  without  classification. 
There  is  no  excuse  whatever  for  the  use  in  a  home  rule  provision 
of  the  vague  term  "general  laws"  unless  the  meaning  of  the  term 
"general"  is  clearly  indicated.  Even  though  it  be  intended  that 
home  rule  charters  shall  be  subject  to  "general  laws"  in  both  of 
the  possible  meanings  of  that  term  —  to  "laws  relating  to  matters 
of  general  or  state  concern"  as  well  as  to  "laws  of  general  appli- 
cation" to  cities  —  there  is  no  possible  reason  why  both  of  these 
expressions  should  not,  for  purposes  of  precision,  be  employed. 

3.  Shall  home  rule  charters  be  made  subject  to  laws  of  general 
application  to  cities?  It  is  idle  to  discuss  whether  home  rule 
charters  should  be  made  "subject  to"  laws  of  special  application 
that  deal  with  matters  of  local  concern.  The  establishment  of 
such  a  relationship  between  the  self-competence  of  the  city  and 
the  superior  competence  of  the  legislature  would  be  little  short 
of  ridiculous.  It  would  rob  the  grant  of  home  rule  of  its  entire 
substance.  Except  in  the  state  of  Missouri,  where  the  courts  for 
a  time  apparently  construed  the  constitution  as  having  created 
such  an  absurd  relationship  between  the  city  and  the  state  legis- 
lature,1 no  home  rule  provision  has  been  so  construed  either  by 
the  courts  in  law  or  by  the  legislature  in  practice.2  The  question 

1  Supra,  123  ff.  2  But  see  the  Michigan  situation ;  supra,  604  ff. 


678  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

remains,  however,  whether  the  legislature  shall,  as  an  antidote 
to  the  home  rule  grant,  be  empowered  to  deal  with  subjects  of 
local  as  well  as  of  general  concern  through  the  medium  of  laws  that 
apply  generally  to  all  the  cities  of  the  state  or  to  all  the  cities  of 
a  class. 

In  California,  Colorado,  and  Oregon  there  can  perhaps  be  no 
question  that  the  legislature  has  no  power  to  enact  such  laws. 
This  is  doubtless  the  situation  also  in  Ohio,  except  in  respect  to 
the  optional  "additional  laws"  which  the  legislature  is  em- 
powered to  enact.1  Because  of  the  difficulty  of  understanding 
and  harmonizing  the  Missouri  decisions,  that  state  may  be  elim- 
inated from  consideration  in  this  connection.  In  Oklahoma 
there  has  apparently  been  no  thought  that  laws  of  "  local  con- 
cern" but  of  " general  application"  to  cities  operated  to  control 
the  provisions  of  home  rule  charters,  at  least  in  so  far  as  such 
laws  were  enacted  after  the  adoption  of  such  charters.  In  Arizona 
and  Nebraska  there  has  been  little  if  any  experience  in  this  re- 
spect and  no  judicial  interpretation.  In  Washington  a  law  of 
general  application  to  the  cities  of  a  class,  no  matter  what  may  be 
the  nature  of  its  subject-matter,  has  been  held  to  apply  to  home 
rule  cities.  So  also  a  law  defining  and  delimiting  the  scope  of 
powers  that  might  be  exercised  by  self-governing  cities  has  been 
sustained  and  deferred  to  by  the  courts  as  conclusive.  In  Minne- 
sota practically  the  same  situation  has  prevailed,  although  the 
legislature  did  not,  as  in  Washington,  and  as  it  was  apparently 
commanded  to  do,  elaborate  from  the  very  beginning  the  powers 
that  cities  might  provide  for  in  charters  of  their  own  making.  In 
Michigan  and  in  Texas  the  home  rule  provisions  clearly  contem- 
plate that  a  statutory  description  and  delimitation  of  the  powers 
of  home  rule  cities  shall  be  made ;  and  in  both  states  this  practice 
has  been  followed. 

In  our  discussion  above  of  the  terms  in  which  the  grant  of  home 
rule  powers  should  be  made,  it  was  assumed  that  these  powers 
were  to  be  conferred  upon  cities  directly  by  the  constitution  and 
that  the  legislature  should  not  be  competent  to  define  and  delimit 

1  Supra,  632. 


SOME  GENERAL  CONCLUSIONS  679 

their  scope.  It  is  quite  possible,  however,  as  we  have  seen,  to 
grant  powers  of  home  rule  subject  to  the  power  of  the  legislature 
to  define  them.  The  constitutions  of  Minnesota,  Michigan,  and 
Texas  do  this  in  unmistakable  terms.  The  same  result  has  been 
reached  in  Washington  by  construing  the  phrase  "  subject  to  general 
laws"  to  include,  among  other  things,  laws  of  general  application 
to  cities.  This  would  seem  to  be  by  no  means  a  strained  con- 
struction. It  might  very  easily  be  adopted  by  the  courts  in  cer- 
tain other  states  in  which  this  phrase  is  employed  should  the 
legislature  attempt  to  place  its  own  interpretation  upon  the  powers 
that  might  be  exercised.  It  must  be  recognized,  therefore,  that 
in  using  such  a  phrase  the  way  is  opened  for  the  legislature  to 
contract  or  to  expand  the  powers  of  home  rule  at  its  pleasure. 

It  has  been  frequently  asserted  that  a  law  providing  a  complete 
charter  for  the  government  of  cities  that  vary  widely  in  number 
of  inhabitants  and  in  other  conditions  would  for  practical  reasons 
be  impossible  of  enactment.  The  Ohio  legislature  proved  in  1902 
the  folly  of  this  assertion.  A  charter  was  enacted  which  was 
fairly  restrictive  in  character  and  which  applied  uniformly  to 
every  city  of  the  state.1  Under  the  home  rule  provisions  of  Min- 
nesota, Michigan,  and  Texas,  which  leave  the  matter  of  the  defini- 
tion of  the  powers  of  cities  to  the  legislature,  there  appears  to  be 
no  reason  why  a  similar  code  might  not  be  passed  and  the  grant 
of  home  rule  powers  thus  reduced  to  a  "hollow  mockery  of  words." 
The  same  result  might  be  reached  in  Washington  and  perhaps  in 
any  other  state  in  which  the  grant  of  home  rule  powers  is  made 
"subject  to  general  laws." 

Whether  or  not  this  power  of  definition  should  be  left  to  the 
legislature  is  a  debatable  question.  On  the  one  hand,  cities,  like 
individuals,  like  to  feel  that  their  self-governing  rights  are  refer- 
able directly  to  the  constitution,  and  that  they  may  invoke  the 
protection  of  the  courts  to  sustain  these  rights  against  legislative 
encroachment,  even  though  such  encroachment  be  made  through 
the  medium  of  a  law  or  laws  of  general  application  to  cities.  On 
the  other  hand,  the  plan  of  legislative  definition  is  certainly  more 

1  Supra,  74. 


680     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

elastic.  It  enables  the  legislature  to  deal  by  statute  with  unfore- 
seen difficulties  that  may  arise.  Where  the  cities  of  a  state  are 
numerous  and  vary  widely  in  population,  and  where  all  classifi- 
cation of  cities  for  this  purpose  is  expressly  prohibited,  it  is  not 
likely  that  the  legislature  will  define  the  home  rule  grant  with 
narrowness.  Nor  is  it  probable  that  they  will  attempt  the  diffi- 
cult task  of  exercising  this  power  for  partisan  purposes.  It  must 
be  recognized,  however,  that  it  is  practically  impossible  to  com- 
bine the  scheme  of  a  statutory  definition  of  home  rule  powers,  by 
a  law  or  laws  of  general  application,  with  the  scheme  of  optional 
home  rule  as  above  described.1  Under  such  a  combination  the 
temptation  would  be  strongly  presented  to  the  legislature  to 
narrow  the  home  rule  grant  and  thus  discourage  the  exercise  of 
powers  thereunder.  If  this  temptation  were  yielded  to,  it  would 
operate  in  effect  to  destroy  the  optional  feature  of  the  scheme  and 
to  preserve  the  power  of  the  legislature  to  provide  directly  for 
the  government  of  all  cities. 

Of  great  importance  is  the  question  whether  the  vesting  of  com- 
petence in  the  legislature  to  define  the  powers  of  home  rule  by 
laws  of  general  application  does  or  does  not  result  in  greater  cer- 
tainty and  less  litigation.  The  answer  to  this  question  depends 
upon  several  circumstances.  If  the  legislature  adopts  the  prac- 
tice, as  it  has  thus  far  in  Michigan  and  in  Texas,  of  enacting  a 
single  home  rule  act  and  of  deferring  with  respect  to  that  enact- 
ment, the  doubts  that  might  otherwise  arise  in  respect  to  the  com- 
petence of  cities  are  reduced  largely  to  a  matter  of  construing  this 
law.  But  having  enacted  such  a  statute,  as  in  Washington,  or 
having  failed  to  elaborate  at  the  outset  the  content  of  home  rule 
powers,  as  in  Minnesota  and  in  certain  other  states  which  subject 
such  powers  to  general  laws  (and  therefore  perhaps  to  laws  of 
general  application  to  cities),  if  the  legislature  nevertheless  proceeds 
to  pass  numerous  laws  of  general  application  to  cities,  the  result 
cannot  fail  to  be  harassing  to  cities,  to  give  rise  to  many  doubts 
as  to  the  relation  of  this  or  that  law  to  a  partially  conflicting  charter 
provision,  and  in  the  course  of  time  to  destroy  the  spirit  as  well 

1  Supra,  664  ff. 


SOME  GENERAL  CONCLUSIONS  681 

as  the  substance  of  the  home  rule  principle.     Moreover,  certain 
contributing  factors  may  aggravate  this  result. 

In  the  first  place,  if  these  laws  need  not  apply  generally  to  all 
the  cities  of  the  state  but  merely  to  general  classes  of  cities,  the 
opportunity  for  the  legislature  to  make  inroads  upon  the  home 
rule  powers  of  cities  is  greatly  increased  while  the  opposition, 
lacking  the  concert  of  many  cities,  is  greatly  weakened.  There 
is  no  question  that  if  the  legislature  is  empowered  to  enact  laws  of 
general  application  to  cities  and  thus  to  define  the  scope  of  home 
rule  powers,  the  constitution  should  expressly  require  that  these 
laws  should  apply  to  all  cities  without  classification.  The  experi- 
ence of  Washington  and  Minnesota  cities  is  eloquent  upon  this 
point. 

In  the  second  place,  the  situation  is  often  complicated  by  the 
fact  that  some  of  the  cities  of  the  state,  or  of  a  class,  will  have 
exercised  home  rule  powers  while  others  will  not  have  done  so. 
A  city  still  operating  under  a  legislative  charter  may  make  demand 
upon  the  legislature  for  an  amendment  which  is  perhaps  much 
needed  and  which  the  city  itself,  for  one  reason  or  another,  has 
been  unable  to  secure  through  the  home  rule  procedure.  This 
amendment  must  take  the  form  of  a  law  applicable  to  all  cities 
or  to  all  the  cities  of  a  class.  If  there  are  home  rule  cities  in  the 
class  it  is  perfectly  clear  that  the  "rights"  of  these  cities  must  be 
balanced  against  the  "needs"  of  another  city  or  other  cities. 
Under  such  circumstances  it  is  not  surprising  that  the  legislature 
should  in  practice  resolve  the  doubt  in  favor  of  the  needs  of  the 
latter  and  thus  in  favor  of  its  own  competence.  The  state  of 
Minnesota,  where  the  first  class  of  cities  embraces  St.  Paul  and 
Duluth  under  home  rule  charters  and  Minneapolis  under  a  legis- 
lative charter,  is  the  state  par  excellence  in  which  this  situation 
has  developed.  It  would  seem  that  the  only  way  to  avoid  this 
difficulty  would  be  to  make  a  constitutional  classification  of  the 
•cities  of  the  state  into  home  rule  cities  and  cities  under  legislative 
charters.  But,  as  has  already  been  said,  the  scheme  of  empower- 
ing the  legislature  to  define  the  powers  of  home  rule  cities  can 
scarcely  be  joined  with  the  scheme  of  such  a  classification.  More- 


682     THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

over,  this  would  eliminate  the  possibility,  if  such  a  plan  be  regarded 
as  desirable,  of  permitting  cities  to  amend  their  charters  prior  to 
the  adoption  of  a  complete  home  rule  charter. 

In  the  third  place,  whether  the  uncertainties  of  a  home  rule 
grant  are  largely  resolved  by  allowing  the  enactment  of  laws  of 
general  application  to  cities  depends  upon  whether  the  distinc- 
tion between  laws  of  general  as  distinguished  from  local  concern 
is  also  introduced  by  the  constitution  or  is  read  into  that  instru- 
ment by  the  courts.  It  is  easy  to  see  that  a  home  rule  provision 
might  be  so  drawn  as  to  make  it  perfectly  clear  that  the  self- 
governing  powers  of  cities  should  be  subject  to  (1)  laws  of  general 
application  to  cities  even  though  these  laws  related  to  matters  of 
local  concern,  and  (2)  laws  relating  to  matters  of  general  concern 
even  though  the  application  of  these  laws  be  special  to  a  particular 
city.  The  fact  is,  however,  that  in  no  home  rule  state  which  we 
have  considered  has  the  home  rule  provision  been  entirely  clear 
and  unmistakable  in  this  regard.  In  most  of  the  states  the  dis- 
tinction between  laws  of  general  as  contrasted  with  those  of  local 
concern  has  been  introduced  by  the  courts  with  or  without  sound 
constitutional  foundation.  But  our  review  of  the  cases  that  have 
arisen  certainly  warrants  the  conclusion  that  the  judicial  mind 
has  frequently  been  muddled  in  the  application  of  this  distinction. 
Laws  have  been  sustained  on  the  ground  that  they  dealt  with 
matters  of  general  concern  which  might  much  more  easily  have 
been  sustained  on  the  ground  of  their  general  application.  It 
would  seem,  therefore,  that,  until  a  home  rule  provision  shall  have 
been  written  which  is  perfectly  explicit  in  regard  to  this  matter, 
it  can  scarcely  be  said  that  the  plan  of  allowing  the  legislature  to 
enact  laws  of  general  application  to  cities  and  thus  to  define  the 
scope  of  home  rule  powers  has  gone  far  in  the  direction  of  strik- 
ing down  doubts  and  lessening  litigation. 

4-  Shall  home  rule  charters  be  made  subject  to  laws  of  general  con- 
cern f  It  is  entirely  conceivable  that  a  home  rule  provision  might 
be  drafted  which  would  empower  the  legislature  by  a  law  or  laws  of 
general  application  to  cities  to  define  the  scope  of  home  rule  powers 
and  would  at  the  same  time  require  the  legislature  to  deal  also 


SOME  GENERAL  CONCLUSIONS  683 

with  those  matters  pertaining  to  the  government  of  cities  which 
are  regarded  as  matters  of  general  or  state  concern,  through  the 
medium  of  laws  of  general  application.  In  other  words,  the 
legislature  would  be  compelled  to  exercise  its  complete  powers 
with  reference  to  the  government  of  cities  by  the  enactment  of 
laws  of  general  and  uniform  application.  It  could  confer  upon 
cities  as  much  or  -as  little  home  rule  as  it  chose,  but  no  law  could 
be  passed  that  would  apply  to  a  city,  even  in  a  matter  of  state 
concern,  unless  that  law  applied  to  every  city.  In  effect  this 
would  be  to  destroy,  so  far  as  the  problem  of  home  rule  is  con- 
cerned, the  legal  distinction  between  matters  of  state  and  matters 
of  local  concern;  for  while  the  legislature  could  itself  regulate 
matters  of  local  concern  it  could  also  empower  cities  to  regulate 
this  or  that  matter  of  state  concern.  It  may  be  that  this  is  the 
situation  created  by  the  Michigan  home  rule  provision,  although 
this  is  by  no  means  certain. 

The  question  of  the  propriety  of  restricting  the  legislature  to 
the  enactment  of  uniform  laws  dealing  with  cities  in  their  capacity 
as  agents  of  the  state  for  the  performance  of  functions  of  so-called 
state  concern  is  wholly  one  of  policy.  It  need  only  be  said  that 
if  this  is  the  intention  of  those  who  draft  a  home  rule  provision  it 
should  be  expressed  in  unequivocal  terms.  So  expressed  it  would 
leave  the  scope  of  home  rule  powers  entirely  within  the  competence 
of  the  legislature  and  would  relieve  the  courts  of  the  burden  of 
deciding  whether  this,  that,  or  the  other  matter  was  of  general 
or  of  local  concern. 

On  the  other  hand,  if  it  be  conceded  that  it  is  undesirable  to 
place  such  a  limitation  upon  the  legislature,  or  that  it  is  undesir- 
able to  clothe  the  legislature  with  unlimited  competence  over  the 
scope  of  home  rule  powers,  it  need  only  be  said  that  the  constitu- 
tion should  itself  indicate  which  of  those  subjects  that  have  given 
rise  to  doubt  and  judicial  controversy  are  to  be  left  in  control  of 
the  legislature  and  which  of  them  are  to  be  handed  over  to  local 
control.  In  other  words,  there  should  be  an  express  enumeration 
in  respect  to  these  moot  subjects.  This  would  again  destroy  in 
large  part,  so  far  as  the  problem  of  home  rule  is  concerned,  the 


684  THE  LAW  AND  THE  PRACTICE  OF  HOME  RULE 

nebulous  distinction  between  matters  of  state  and  matters  of 
local  concern.  The  relation,  for  example,  between  a  charter  pro- 
vision and  a  state  law  relating  to  education,  or  the  control  of  pub- 
lic utilities,  or  any  other  of  the  common  subjects  of  vexation 
would  be  determined  not  by  the  application  of  an  uncertain  and 
varying  juristic  concept  but  by  an  interpretation  and  application 
of  the  express  terms  of  the  constitution  upon  the  subject  at  issue. 
As  has  already  been  indicated,  if  the  plan  were  adopted  of  accom- 
panying the  general  grant  of  self-governing  power  with  a  specific 
enumeration  of  powers  within  what  may  be  called  the  twilight 
zone,  it  would  be  a  matter  of  no  great  difficulty,  in  connection 
with  this  enumeration,  to  set  forth  with  fair  precision  the  respects 
in  which  state  laws  should  take  supremacy  over  charter  provisions. 
Let  it  be  said  again  that  the  actual  scope  of  the  concrete  powers 
of  self-government  which  cities  should  enjoy  and  the  scope  of 
powers  which  the  legislature  should  enjoy  over  cities  are  in  first 
as  well  as  in  last  analysis  wholly  questions  of  policy.  If  the 
formulation  of  this  policy  is  not  to  be  left  entirely  to  the  legisla- 
ture, it  should  certainly  be  made  with  as  much  exactness  as  pos- 
sible by  the  terms  of  the  fundamental  law  itself.  It  is  as  inex- 
cusable in  reason  as  it  is  unsatisfactory  in  practice  that  the  heavy 
burden  of  developing  the  lines  of  this  big  problem  of  policy  should 
be  imposed  upon  the  judicial  branch  of  the  government. 


TABLE   OF  CASES 


Adler  v.  Jenkins,  33  Okla.    117  —  579 
Ah  You,  Ex  parte,  82  Cal.  339  —  238, 

242,  243,  244 

Aichele  v.  Denver,  52  Col.  183  —  530 
Albright  v.  Fisher,  164  Mo.  56  —  190 
Allison,  Matter  of,  v.  Welde,  172  N.  Y. 

421  —  39 
American    Electric  Co.  v.    Waseca,   102 

Minn.  329  —  486 

Apple  v.  Zeraansky,  166  Cal.  83  —  223 
Astor  v.   Mayor  etc.  of  New  York,   62 

N.  Y.  567  —  39 
Atchinson  v.  Bartholow,  4  Kans.  124  — 

85 
Atkin   v.  Kansas,   191    U.  S.  207  —  26, 

538,  539 
Attorney   General   ex   rel.    (Hudson)    v. 

Common     Council     of    Detroit,     164 

Mich.  369  —  611,  614 
Attorney    General    ex    rel.    (Vernor)    v. 

Common     Council     of    Detroit,     168 

Mich.  249  —  615 
Attorney  General  ex  rel.  v.  Lindsay,  178 

Mich.  524—611 
Attorney  General  ex  rel.  v.  MacDonald, 

164  Mich.  590  —  619 
Attorney  General  ex  rel.  v.  McGuinness, 

78  N.  J.  L.  346  —  15,  46 
Attorney  General  ex  rel.  v.  Mayor  etc.  of 

Adrian,  164  Mich.  143  —  619 
Attorney  General  ex  rel.  v.  Thompson, 

168  Mich.  511  —  605 


Babcock  v.  Helena,  34  Ark.  499  —  89 
Badgley  v.  St.  Louis,  149  Mo.  122  —  165, 

193 
Baldwin  v.   Mayor  etc.   of  New  York, 

45  Barb.  (N.  Y.)  359  —  25 
Ballentine    v.    Mayor    etc.    of    Pulaski, 

15  Lea  (Tenn.)  633  — 90  * 


Banaz    v.    Smith,    133    Cal.    102  —  47, 

272,  273,  274,  276,  372 
Bank    of    Commerce,    In   re,    153    Ind. 

460  —  79,  80 
Bannerman   v.   Boyle,    160   Cal.    197  — 

344,  392,  393 
Barber  Asphalt   Paving   Co.   v.    Munn, 

185  Mo.  552  —  169 
Barber   Asphalt   Paving   Co.    v.    Ridge, 

169  Mo.  376  —  168 
Barnes  v.  District  of  Columbia,  91  U.  S. 

540  —  16,  508 
Barnes  v.  Town  of  Lacon,  84  111.  461  — 

25,  49 
Barthel    v.    Board    of    Education,    153 

Cal.  376  —  344 

Beck  v.  St.  Paul,  87  Minn.  381  —  486 
Benson   v.    Mayor   etc.    of    New   York, 

10  Barb.  (N.  Y.)  223  —  20,  22 
Ben  ton  v.  Seattle  Electric  Co.,  50  Wash. 

156  —  438,  450 
Berkeley  ».  Board  of  Education,  58  S.W. 

506  —  25 
Billings    v.    Cleveland    Ry.    Co.,  —  Oh. 

St.  —  (1914)  —  644 
Bishop  v.  Council  of  Oakland,  58  Cal. 

572  —  379 
Blanchard  v.  Hartwell,  131  Cal.  263  — 

198,  221,  224,  260,  418 
Bluffton  v.  Studabaker,  106  Ind.  129  — 

77 
Board    of    Commissioners    v.    Board    of 

Trustees     of     Sacramento,     71     Cal. 

310  —  47 
Board   of   Commissioners   v.   Lucas,    93 

U.  S.  108  —  23 
Board  of  Education  v.  Board  of  Trustees, 

129  Cal.  599  —  301 
Board    of    Education    v.    State    ex    rel., 

26  Okla.  366  —  586 
Boys  and  Girls  Aid  Society  v.  Reis,  71 

Cal.  627  —  47 
Braun,   Ex  parte,    141   Cal.    204  —  277, 

280,  281 


685 


686 


TABLE  OF  CASES 


Brenner,    Matter  of,    170  N.  Y.  185  — 

39 

Brewstert>.  Syracuse,  19  N.  Y.  116  —  24 
Bridgman  v.  Roberts,   40  Okla.  495  — 

579 
Brookes   v.    Oakland,    160   Cal.    423  — 

284 

Brooklyn  Park  Commissioners  ».  Arm- 
strong, 45  N.  Y.  234  —  566 
Brooks  v.   Fischer,   79   Cal.    173  —  205, 

239,  245 

Brown  v.  Denver,  7  Col.  305  —  47 
Brown  v.  Galveston,  97  Tex.  1  —  13,  15 
Brunn  &  Donnell  v.  Kansas  City,  216 

Mo.  108  —  167 
Burch   v.   Hardwicke,   30   Gratt.    (Va.) 

24  —  256 
Burger,    In    the    Matter    of,    21    Misc. 

(N.  Y.)  370  —  42 
Burns  v.  City  of  New  York,  121  N.  Y. 

App.  Div.  180  —  26 
Butler  v.  Lewiston,  11  Id.  393  —  95 
Byrne   v.    Drain,    127    Cal.    663  —  271, 

272,  273,  274,  275,  276,  310,  338 
Byrne  v.  People  ex  rel.,  34  Col.  196  — 

512 


Cairo  etc.   Rd.   Co.   v.   Sparta,   77   111. 

505  —  49 
Campbell,  Ex  parte,  74  Cal.  20  —  307, 

324 
Carpenter  v.  People  ex  rel.,  8  Col.  116  — 

47 
Carrillo,   In  re,   66  Cal.   3  —  242,   243, 

244 
Carter    t>.    Superior    Court,     138    Cal. 

150  —  273 
Casinello,    Ex    parte  —  62    Cal.    538  — 

323 
Central  Trust  Co.  v.  Citizens'  St.  R.  Co., 

80  Fed.  Rep.  218  —  79 
Chamberlain    v.     Evansville,     77     Ind. 

542  —  77 

Cheney,  Ex  parte,  90  Cal.  617  —  324 
Chlopeck  Fish  Co.  r>.  Seattle,  64  Wash. 

315  —  434 

Christie  v.  Duluth,  82  Minn.  202  —  486 
City  of,  see  name  of  city 
Clark  v.   Los  Angeles,    160  Cal.   30  — 

362 
Cleveland  t>.  Clements  etc.  Co.,  67  Oh. 

St.  197  —  26,  406 


Cloherty,  In  re  — 2  Wash.  137  —  401 
Clouse  v.  San  Diego,  159  Cal.  434  —  339 
Coffey  v.  Superior  Court,  147  Cal.  525  — 

314,  316,  317,  318,  366,  376 
Coggins  v.  Sacramento,  59  Cal.  599  — 

379 
Commissioners  of  Central  Park,  Matter 

of,  35  How.  Pr.  (N.  Y.)  255  —  39 
Common  Council  of  Jackson  v.  Harring- 
ton, 160  Mich.  550  —  608,  614,  618 
Commonwealth  v.   Plaisted,    148   Mass. 

375  —  256 
Conlin  v.  Board  of  Supervisors,  1 14  Cal. 

404  —  259,  380,  382 
Cotteral  v.  Barker,  34  Okla.  533  —  586, 

588 

County  of  Richland  v.  County  of  Law- 
rence, 12  111.  1  —  20 
Covington     v.     Kentucky,     173     U.  S. 

231  —  20 
Craig    v.    Superior    Court,      157     Cal. 

481  —  316,  317,  318 
Creighton    v.    San    Francisco,    42    Cal. 

446  —  25 
Crim     v.     San     Francisco  —  152     Cal. 

279  —  341 
Croly   v.   Sacramento,    119   Cal.   229  — 

313,  365 
Crowley  v.  Freud,  132  Cal.  440  —  388, 

393,  643 
Cullen,    Matter    of,    53   Hun.    (N.  Y.) 

534  —  25 
Curran  Bill  Posting  etc.  Co.  v.  Denver, 

47  Col.  221  —  550 
Curtice  v.  Schmidt,  202  Mo.  703  —  169 


D 


Dalton,  In  re,  61  Kans.  257  —  26,  406 
Danielly  v.  Cabaniss,  52  Ga.  211  —  300 
Darlington  v.  Mayor  etc.  of  New  York, 

31  N.  Y.  164  —  20,  25 
Darrow  v.  People,  8  Col.  426  —  47 
Dartmouth    College    v.    Woodward,     4 

Wheaton  (U.  S.)  518  —  18 
Davidson  ».  Hine,  151  Mich.  294  —  13, 

44 
Davies  v.  Los  Angeles,  86  Cal.  37  —  47, 

246,  271 
Davis  &  Bro.  ».  Woolnough,  9  la.  104  — 

81,  83 
Davock  v.  Moore,  105  Mich.  120  —  13, 

44 
Davoust  v.  Alameda,  149  Cal.  69  —  357 


TABLE  OF  CASES 


687 


Denninger    v.    Recorder's    Court,     145 

Cal.  629  —  347 
Denver  v.  Adams  County,  33  Col.  1  — 

504,  527 

Denver  v.  Bach,  26  Col.  530  —  549 
Denver  v.  Bottom,  44  Col.  308  —  529 
Denver  v.  Frueaff,  39  Col.  20  —  550 
Denver  v.  Hallett,  34  Col.   393  —  531, 

532,  536 

Denver  v.  Iliff,  38  Col.  357  —  48,   529 
Denver  v.  Londoner,  33  Col.   104  —  48 
Denver  v.  Meyer,  54  Col.  96  —  531 
Denver  v.    Rogers,   46   Col.   479  —  550 
Desmond  v.  Dunn,  55  Cal.  242  —  232, 

236 

De  Soto  v.  Brown,  44  Mo.  App.  148  —  140 
Devoy  v.  Mayor  etc.  of  New  York,  36 

N.  Y.  449  —  41 
Dinan  v.  Superior  Court,   6  Cal.  App. 

217  —  317 

Dixon  v.  People,  53  Col.  527  —  515,  516 
Dobbins  v.  Los  Angeles,  139  Cal.  179  — 

324 

Dodge,  Matter  of,   135  Cal.  512  —  387 
Dolan,   Ex  parte,    128   Cal.   460  —  373, 

374,  375,  376 
Dubuque   v.   111.    Central   Rd.    Co.,    39 

la.  56  —  20 
Dubuque  County  v.  D.  &  P.  R.  R.  Co., 

4  Greene  (la.)  1  —  58 
Duluth  v.  Orr,   115  Minn.  267  —  475 
Durham  v.   Spokane,   27  Wash.   615  — 

446,  447,  448 


E 


Egan  ».  San  Francisco,  165  Cal.  576  — 

363 
Eichels  v.  Evansville    St.   Ry.    Co.,  78 

Ind.  261  —  77 

Eikhoff  v.  Charter  Commission  of  De- 
troit, 176  Mich.  535  —  619 
Elder  v.  Denver,  53  Col.  496  —  530 
Elder  v.    McDougald,    145   Cal.   740  — 

374,  377 
Ellerman    v.    McMains,    30    La.    Ann. 

190  —  20 

Elwell  v.  Comstock,  99  Minn.  261  —  477 
Essex   Public    Road   Board   v.    Skinkle, 

140  U.  S.  334  —  23 
Estate  of  Bulmer,  59  Cal.  131  —  296 
Evansville  v.  Bayard,  39  Ind.  450  —  77 
Evansville   v.    State    ex   rel.,    118    Ind. 

426  —  13 


Evansville  v.  Summers,  108  Ind.  189  — 

77 
Ewing  ».  Hoblitzelle,  85  Mo.  64  —  128, 

141,  143,  144,  145,  147,  154 
Ewing  v.  Seattle,  55  Wash.  229  —  438, 

450 
Ex  parte,  see  name  following 


Farmers   and    Merchants   Bank   v.   Los 

Angeles,  151  Cal.  655  —  340 
Fawcett  v.  Mt.  Airy,  134  N.C.  125  —  57 
Fellows  v.  Los  Angeles,   151  Cal.  52  — 

335,  336,  360 
Fire    &    Excise    Commissioners,    In   re, 

19  Col.  482  —  48 
Fitzgerald    v.    Cleveland,    88    Oh.    St. 

338  —  635,  638,  643 
Fleming  v.  Hance,  153  Cal.  162  —  212, 

257,  372,  383,  390 

Ford  v.  Kansas  City,  181  Mo.  137  —  191 
Foster  v.  Board  of  Police  Commissioners, 

102  Cal.  483  —  327 
Fragley  v.  Phelan,   126  Cal.  383  —  209, 

262,  265,  272,  384,  419 
Frick  v.  Los  Angeles,  115  Cal.  512  —  209 
Fritz  v.  San  Francisco,  132  Cal.  373  — 

282,  285 


Gaddis    v.    Richland    County,    92    111. 

119  —  25,  49 
Gallup    v.    Saginaw,    170    Mich.    195  — 

608,  615 
Garnett  v.  Brooks,  136  Cal.  585  —  389, 

393 
Gassner  v.    McCarthy,    610   Cal.   82  — 

337 

Gentile  v.  State,  29  Ind.  409  —  78 
German  Savings  &  Loan  Society  v.  Ram- 

ish,  138  Cal.  120  —  273 
Glendinning  v.  Denver,  50  Col.  240  — 

551 

Goodrich,  Ex  parte,  160  Cal.  410  —  346 
Graham  v.  Fresno,   151  Cal.  465  —  14, 

378,  383 
Grand   Ave.   Ry.    Co.   v.   Citizens'   Ry. 

Co.,   148  Mo.  665—194 
Grand    Ave.    Ry.    Co.    v.    Lindell    Ry. 

Co.,  148  Mo.  637—194 
Grant  v.  Berrisford,  94  Minn.  45  —  480, 

485,  486,  487,  490,  491 


688 


TABLE  OF  CASES 


Greaton   v.   Griffin,    4   Abb.    Pr.    (New 

Ser.)  (N.  Y.)  310  —  36 
Green  v.  State  Civil  Service  Commission, 

107  N.  E.  531  —  644 
Green  v.  Superior  Court,  78  Cal.  556  — 

376 
Grogan  v.  San  Francisco,  18  Cal.  590  -* 

20 

Guerrero,  In  re,  69  Cal.  88  —  324 
Guilford    v.    Supervisors    of    Chenango 

County,  13  N.  Y.  143  —  24,  25 
Guthrie    Nat'l    Bank    v.    Guthrie,    173 

U.  S.  528  —  24 
Gutzweller  v.  People,  14  111.  142  —  20 


Haase,    In    the    Matter   of,    88   N.   Y. 

App.  Div.  242  —  42 
Haeussler  v.  St.  Louis,  205  Mo.  656  — 

163 

Hallett  ».  Denver,  46  Col.  487  —  530 
Hancock   v.    Board    of   Education,    140 

Cal.    554  —  300,    302,    304,    305,    586 
Hang  Kie,  In  re,  69  Cal.  149  —  324 
Hanlon  v.   Supervisors   of  Westchester, 

57  Barb.  (N.  Y.)  383  —  36,  59 
Hanson  v.  Vernon,  27  la.  28  — 58 
Hardenbergh  v.  Van  Keuren,  16  Hun 

(N.  Y.)  17  —  25 

Harmon  v.  Chicago,  110  111.  400  —  469 
Harrison    v.    Roberts,    145    Cal.    173  — 

219,  222 

Hartig  v.  Seattle,  53  Wash.  432  —  449 
Hasbrouck  v.  Milwaukee,  13  Wis.  42  — 

25 

Hase  v.  Seattle,  51  Wash.  174  —  447 
Haughawout  ».  Percival,  161  Cal.  491  — 

285 

Hayes,  Ex  parte,  98  Cal.  555  —  324 
Helena  Consolidated  Water  Co.'«.  Steele, 

20  Mont.  1  —  14 
Hellman  v.   Shoulters,    114  Cal.    136  — 

237,  276 
Helm,   Ex   parte,    143   Cal.    553  —  253, 

280 
Hequembourg    v.     Dunkirk,     49     Hun 

(N.  Y.)  550  —  40 
Hetherington  v.  Bissell,  10  la.  145—81, 

83 
Eiits  v.  Markey,  52  Col.  382  —  517,  518, 

521,  523,  525,  545,  554 
Hilzinger  v.  Gillman,  56  Wash.  228  — 

428 


Hindman  v.  Boyd,  42  Wash.  17  —  420, 

422,  438,  449 
Hoagland     v.     Sacramento,      52      Cal. 

142  —  25 

Hoffman,  In  re,  155  Cal.  114  —  256 
Hollwedell,  Ex  parte,  74  Mo.  395 —  141 
Hong  Shen,  Ex  parte,  98  Cal.  681  —  256 
Horton  v.  Mobile  School  Commissioners, 

43  Ala.  598  —  300 

Horton  v.  Thompson,  71  N.Y.  513  —  25 
Howe  v.  Barto,  12  Wash.  627  —  433 
Hughes  v.  Ewing,  93  Cal.  414  —  296 
Humphreys  v.  Norfolk,  25  Gratt.  (Va.) 

97  —  91 
Hunter  v.  Tracy,  104  Minn.  378  —  496 

I 

Independence  ».  Moore,  32  Mo.  392  — 

141 
Indianapolis  v.  Navin,   151  Ind.   139  — 

76,  79,  80 

In  re,  see  name  following 
In  the  Matter  of,  see  name  following 


Jackson,  Ex  parte,  143  Cal.  564  —  253, 

280 
Jenks  v.   Council   of  Oakland,    58   Cal. 

576  —  379 
Johnston,  In  re,  137  Cal.  115  —  347 

K 

Kahn    v.    Sutro,    114    Cal.    316  —  248, 

255,  372,  388 
Kansas  City  v.  Bacon,  147  Mo.  259  — 

140,  159,  168,  196 
Kansas  City  v.  Hallett,  59  Mo.  App.  160 

—  140 

Kansas    City   v.    Marsh   Oil    Company, 

140    Mo.   458  — 140,    160,    174,    196, 

198,  566 
Kansas  City  v.  Neal,  49  Mo.  App.  72  — 

196 
Kansas    City    ex    rel.    v.    Scarritt,    127 

Mo.   642  —  124,    157,    159,    160,    168, 

188 
Kansas  City  v.  Stegmiller,  151  Mo.  189 

—  124,  148,  188 

Kansas  City  v.  Ward,   134  Mo.   172  — 

160 
Kansas  City  v.  Whipple,  136  Mo.  475  — 

184 


TABLE  OF  CASES 


689 


Keefe  t>.  People,  37  Col.  317  —  26,  538 
Keeney,  Ex  parte,  84  Cal.  304  —  286 
Kelly  v.  Van  Wyck,  35   Misc.    (N.  Y.) 

210  —  42 

Kenefick  v.  St.  Louis,  127  Mo.  1  —  158 
Kennedy    v.    Board    of    Education,    82 

Cal.  483  —  241,  295 
Kennedy  v.  Miller,  97  Cal.  429  —  246, 

295,  298,  300,  301,  303,  344,  371,  586 
Kiburg,  Ex  parte,    10  Mo.  App.  442  — 

196 
Kiernan,  In    the    Matter  of,  62   N.  Y. 

457  —  9 

Kleppe  v.  Gard,  109  Minn.  251  —  493 
Knoxville  Water  Co.  v.  Knoxville,  200 

U.  S.  22  —  361 


Labatt   v.    New   Orleans,   38   La.    Ann. 

283  —  30 

Lacey,  Ex  parte,  108  Cal.  326  —  324 
Lackey  v.  State  ex  rel.  29  Okla.  255  — 

575,  583 
Laurel  Hill  Cemetery  v.  San  Francisco, 

152  Cal.  464  —  292 
Law  v.  San  Francisco,   144  Cal.  383  — 

302,  304,  305 
Lemon,  Ex  parte,   143  Cal.   558  —  253, 

280 
Le  Tourneau  v.  Hugo,  90  Minn.  420  — 

495 
Lewis,    Ex   parte,  45   Tex.    Grim.    App. 

1  —  13 
Lexington  v.  Thompson,  113  Ky.  540  — 

13,  15 
Litchfield     v.     McComber,     42     Barb. 

(N.  Y.)  288  —  38 

Londoner  v.  Denver,  52  Col.   15  —  536 
Longview    v.    Crawfordsville,    164    Ind. 

117  —  79,  80 

Longworth's  Executors  v.  Common  Coun- 
cil of  Evansville,  32  Ind.  322  —  77 
Lorenzen,  Ex  parte,  128  Cal.  431  —  325 
Los  Angeles  v.  Davidson,  150  Cal.  59  — 

311 
Los  Angeles  v.   Teed,    112   Cal.   319  — 

47,  251 
Los  Angeles  Ry.  Co.  v.  Los  Angeles,  152 

Cal.  242  —  311,  313 
Los  Angeles   School   Dist.   v.   Longden, 

148  Cal.  380  —  303,  384,  586 
Loving,  Ex  parte,  178  Mo.  194  —  196 
Lovingston  v.   Wider,  55  111.   302  —  49 


Lowther  v.  Nissley,  38  Okla.  797  —  565 
Lubliner  v.  Alpers,  145  Cal.  291 — 223 
Luehrman  v.  Taxing  Dist.,  2  Lea  (Tenn.) 

425  —  14,  89 
Luther  v.  Borden,  7  Howard  (U.  S.)  1  — 

525 


M 

McClain,  Ex  parte,  134  Cal.  110  —  324 
McClelland  v.  Denver,  36  Col.  486  —  549 
McClure  v.  Owen,  26  la.  243  —  58 
McKannay  v.  Horton,   151  Cal.  711  — 

315,  316,  366 
McKeon  v.  Portland,  61  Ore.  385  —  600, 

601,  602,  603 

McNally,  Ex  parte,  73  Cal.  632  —  324 
Madera  Waterworks  v.  Madera,  228 

U.  S.  454  —  361 
Malette  v.  Spokane,  77  Wash.  205  —  26, 

406 

Manker  v.  Faulhaber,  94  Mo.  430  —  164 
Mardis  v.  McCarthy,  162  Cal.  94  —  337 
Marshall  v.  Silliman,  61  111.  218  —  25, 

49,  337 

Martin    v.    Board    of    Election    Com- 
missioners, 126  Cal.  404  —  386 
Mason  v.  Crowder,  85  Mo.  526  —  169 
Mason  v.  Missouri,  179  U.S.  328  —  27 
Matter  of,  see  name  following 
Mauff    v.    People,    52    Col.    562  —  516, 

521,  523,  524,  525,  543,  547,  554,  555 
Mayor  etc.  of  Baltimore  v.  State,  15 

Md.  376  —  255 
Mayor  etc.  of  New  York,  In  the  Matter 

of  Application  of,  99  N.  Y.  569  —  51 
Mayor  etc.  of  New  York  v.  Ordrenan,  12 

John.  (N.  Y.)  122  —  5 
Mayor  etc.  of  New  York  v.  Tenth  Nat'l 

Bank,  111  N.  Y.  446  —  36 
Megins  v.    Duluth,  97  Minn.  23  —  487 
Memphis  Freight  Co.  v.  Mayor  etc.  of 

Memphis,  4  Cold.  (Tenn.)  419  —  22 
Mergen  v.  Denver,  46  Col.  385  —  549 
Metropolitan  Board  of  Excise  v.  Barrie, 

34  N.  Y.  657  —  37 
Metropolitan  Board  of  Health  v.  Heister, 

37  N.  Y.  661  —  37 

Meves  v.  Schriver,  162  Mich.  359  —  618 
Milam  County  v.  Bateman,  54  Tex. 

153  —  23 

Miller  v.  Curry,   113  Cal.  644  —  248 
Miner  v.  Justices'  Court,  121  Cal.  264  — 

207,  244 


690 


TABLE  OF  CASES 


Mitchell,  In  re,  120  Cal.  384  —  244 
Mitchell  v.  Board  of  Education,  137  Cal. 

372  —  344 
Mitchell  v.  Carter,  31  Okla.  592  —  582, 

584 
Moberly  v.  Hoover,  93  Mo.  App.  663  — 

131 

Mode  v.  Beasley,  143  Ind.  306  —  78 
Montgomery,  In  re,  163  Cal.  457  —  332 
Moreland  v.   Millen,    126   Mich.   381  — 

13,  44 
Morgan,  Matter  of,  v.  Furey,  186  N.  Y. 

202  —  38,  40 
Morrow  v.  Kansas  City,  186  Mo.  675  — 

121,  197 

Morton  v.  Broderick,  118  Cal.  474  —  254 
Mount,  Ex  parte,  66  Cal.  448  —  324 
Mt.    Pleasant    v.    Beckwith,    100   U.S. 

514  —  18 

Moynier,  Ex  parte,  65  Cal.  33  —  324 
Murnane  ».  St.  Louis,   123  Mo.  479  — 

123,  124,  155 


N 


Nat'l    Bank    of    Cleveland    v.    Tola,    9 

Kans.  689  —  86 

New  Orleans  v.  Clark,  95  U.  S.  644  —  24 
New    Orleans    v.    New    Orleans    Water 

Works  Co.,  142  U.  S.  79  —  20 
New  Orleans  M.  &  C.  Rd.  Co.  v.  New 

Orleans,  26  La.  Ann.  517  —  22 
Newport  v.  Horton,  22  R.  I.  196  —  256 
New  York   Fire  Dept.  v.  Atlas  Steam- 
ship Co.,  106  N.  Y.  566  —  39 
Nicholl  v.  Koster,    157  Cal.  416  —  390 
Nicol  v.  Mayor  of  Nashville,  9  Humph. 

(Tenn.)  252  —  49 
Nicol  v.  St.  Paul,  80  Minn.  415  —  487 


Oakland  v.  Thompson,   151  Cal.  572  — 

285 
Odd    Fellows    Cemetery    Assn.    v.    San 

Francisco,    140   Cal.   226  —  292,   293, 

328,  329 

Olcott  v.  St.  Paul,  91  Minn.  207  —  487 
Olcott  v.  Supervisors,   16  Wall.    (U.  S.) 

678  —  363 
Ould    &    Carrington    v.    Richmond,    23 

Gratt.  (Va.)  464  —  91 
Owen  v.  Baer,  154  Mo.  434—127 
Owen  v.  Tulsa,  27  Okla.  264  —  566 


Pacific  Am.   Fisheries  v.  Whatcom,   69 

Wash.  291  —  410 
Pacific  States  Teleph.  &  Teleg.  Co.  v. 

Oregon,  223  U.  S.  118  —  525 
Parks   v.   Board   of   Commissioners,    61 

Fed.  Rep.  436  —  14 
Pasadena  School  Dist.  v.  Pasadena,  166 

Cal.  7  —  306 
Pearce  v.  Stephens,  18  N.  Y.  App.  Div. 

101  —  42 

Pennie  v,  Reis,  80  Cal.  266  —  47 
People  v.  Acton,  48  Barb.  (N.  Y.)  524  — 

41 
People  ex  rel  v.  Adams,  31  Col.  476  — 

526 
People   ex  rel.   v.  Albertson,    55   N.   Y. 

50  —  14,  37 
People    ex    rel.    v.    Alexander,    34    Col. 

193  —  512 
People  ex  rel.   v.   Andrews,    104   N.   Y. 

570  —  37 

People    ex    rel.    v.    Armstrong,    34  Col. 

204  —  512 
People  ex  rel.  v.  Bagley,  85  Cal.  343  — 

245 

People  v.  Batchellor,  53  N.  Y.  128  —  25 
People  ex  rel.   v.   Batchelor,   22   N.  Y. 

128  —  42 
People  ex  rel.  v.  Bennett,  54  Barb.  (N.  Y.) 

480  —  38 
People  ex  rel.  v.  Berger,  34  Col.  199  — 

512 
People  ex  rel.  v.  Blake,  49  Barb.  (N.  Y.) 

9  —  41 
People  ex  rel.  v.  Burch,  79  N.  Y.  App. 

Div.  156  —  42 

People  ex  rel.  v.  Burr,  13  Cal.  343  —  24 
People    ex    rel.    v.    Cassiday,    50    Col. 

503  —  513,    514,    516,    517,  518,  543 
People  ex  rel.  v.  Cobb,   133  Cal.  74  — 

379,  380 
People    ex   rel.    (Devery)    v.    Coler,  173 

N.  Y.  103  —  42 
People  ex  rel.    (Rodgers)   ».   Coler,   166 

N.  Y.  1  —  26,  406 
People   ex   rel.   v.    Common    Council    of 

Detroit,  28  Mich.  228  —  13,  44 
People  ex  rel.  v.  Cooper,  83  111.  585  —  94 
People    ex   rel.    v.    Coronado,    100    Cal. 

571  —  247,  333,  334 

People  ex  rel.  v.  Crooks,  53  N.  Y.  648  — 
42 


TABLE    OF    CASES 


691 


People  ex  rel.  v.  Davie,  114  Cal.  363  — 

220 

People  v.  Dooley,  171  N.  Y.  74  —  42 
People  ex  rel.  v.  Draper,  15  N.  Y.  532  — 

14,  34,  36,  41,  256 
People  ex  rel.  v.  Dunlap,  66  N.  Y.  162  — 

39 

People  ex  rel.  v.  Elder,  34  Col.  197  —  512 
People  ex  rel.  v.  Flagg,  46  N.  Y.  401  —  36 
People  ex  rel.  v.  Foley,  148  N.  Y.  677  — 

42 
People    0.    Gunn,    85    Cal.    238  —  208, 

220 
People  ex  rel.  v.  Haws,  37  Barb.  (N.  Y.) 

440  —  25 
People  ex  rel.  v.  Hecht,  105  Cal.  621  — 

220 
People  ex  rel.  v.  Henshaw,  76  Cal.  436  — 

241, 242,  243,  268 
People  v.  Hill,  125  Cal.  16  —  218,  267, 

268 
People  v.  Hoge,  55  Cal.  612  —  205,  259, 

261,267 
People  ex  rel.  v.  Holladay,  93  Cal.  241  — 

275 
People  ex  rel.  v.  Horan,  34  Col.  304  — 

512,  513 
People  ex  rel.  v.  Houghton,   182  N.  Y. 

301  —  42 
People  ex  rel.  v.  Howard,  94  Cal.  73  — 

240 
People  ex  rel.  v.  Hurlbut,  24  Mich.  44  — 

13,  43,  44,  255 
People  ex  rel.  v.  Johnson,  34  Col.  143  — 

509,  511,  512,  515,  516,  521,  526,  529, 

541,  542,  543 

People  ex  rel.  v.  Kelly,  76  N.  Y.  475  —  51 
People  ex  rel.  v.  Long  Beach,  155  Cal. 

604  —  335 
People  ex  rel.  v.  Los  Angeles,   154  Cal. 

220  —  270 
People  ex  rel.  v.  Lothrop,  24  Mich.  235  — 

13,  44 

People  v.  Lynch,  51  Cal.  15  —  14 
People  ex  rel.  v.   McDonald,  69  N.  Y. 

362  —  36 
People  ex  rel.  v.   McKinney,   52  N.  Y. 

374  —  42 
People    ex   rel.    v.    Mahaney,    13    Mich. 

481  —  43,  255 
People  ex  rel.  v.  Mayor  etc.  of  Chicago, 

51  111.  17  —  14,  49 
People  ex  rel.  v.  Mayor  of  Detroit,  29 

Mich.  343  —  13,  44 


People    ex   rel.    v.    Metropolitan    Police 

Board,  19  N.  Y.  188  —  42 
People  v.  Middleton,  28  Cal.  604  —  286 
People  v.  Morris,  13  Wend.  (N.  Y.)  325 

—  20,  65 
People  ex  rel.  v.  Mosher,  163  N.  Y.  32  — 

41,  42 
People  ex  rel.  v.  Newman,  96  Cal.  605  — 

326,  327,  328,  330 
People    v.    News-Times    Pub.    Co.,    35 

Col.  253  —  512 
People  ex  rel.   (Adams)   v.  Oakland,  92 

Cal.  611  —  333,  334 
People  ex  rel.  (Cuff)  v.  Oakland,  123  Cal. 

598  —  269 
People  ex  rel.   (Eldred)   v.  Palmer,   154 

N.  Y.   133—42 
People  ex  rel.  (Kingsland)  v.  Palmer,  52 

N.  Y.  83  —  39 
People  ex  rel.   (Burns)   v.  Partridge,  38 

Misc.  (N.  Y.)  697  —  42 
People  ex  rel.  (Lahey)  v.  Partridge,  74 

N.  Y.  App.  Div.  291  —  42 
People  ex  rel.  v.  Perkins,  56  Col.  17  — 

549 
People  ex  rel.  v.  Perry,  79  Cal.   105  — 

286,  292 
People   ex  rel.   v.   Pinckney,   32   N.   Y. 

277  —  39 

People  ex  rel.  v.  Porter,  90  N.  Y.  68  —  37 
People  ex  rel.  v.  Prevost,  55  Col.  199  — 

524,  525,  547,  557 

People  v.  Purdy,  2  Hill  (N.  Y.)  31  —  65 
People  v.  Raymond,  37  N.  Y.  428  —  41 
People  ex  rel.  v.  Rice,  34  Col.  198  —  512 
People  ex  rel.  v.  Sands,  102  Cal.  12  —  247, 

379,  380 
People    ex    rel.    v.    Shepard,    36    N.    Y. 

285  —  14,  37 
People  ex  rel.  v.  Sours,  31  Col.  369  — 

506,  510,  512,  517,  545 
People    v.     Stephens,     62    Cal.    209  — 

347 
People  ex  rel.  v.  Stevens,  51  How.  Pr. 

(N.  Y.)   103  —  39 
People  ex  rel.  v.  Stoddard,  34  Col.  200  — 

512 
People  ex  rel.  v.  Supervisors  of  Oneida 

County,  170  N.  Y.  105  —  36 
People  ex  rel.  v.  Tax  Commissioners,  174 

N.  Y.  417  —  40 
People  v.  Toal,  85  Cal.  333  —  206,  207, 

208,  212,  213,  216,  242,  243,  244,  257, 

371,  383 


692 


TABLE    OF    CASES 


People  ex  rel.  v.  Williamson,    135  Cal. 

415  —  213,    287,    291,    292,    294,    343 
People  ex  rel.  v.  York,  35  N.  Y.  App. 

Div.  300  —  42 

Pereria  v.  Wallace,  129  Cal.  397  —  347 
Perkins  v.  Slack,   86  Pa.   St.  270  —  47 
Perry  v.  Los  Angeles,   157  Cal.   146  — 

285,  338 
Peterson  «.  Red  Wing,  101  Minn.  62  — 

488 
Pfahler,  In  re,  150  Cal.  71  —  210,  318, 

329,  330,  367 
Platt  v.  San  Francisco,   158  Cal.  74  — 

355,  359,  360,  361,  362 
Popper   v.    Broderick,    123    Cal.   456  — 

255,  392 
Portland  &  Willamette  Valley  Rd.  Co. 

v.  Portland,  14  Ore.  188  —  22 
Pritz,  Ex  parte,  9  la.  30  —  81,  83 
Proprietors   of   Mt.    Hope   Cemetery  v. 

Boston,  158  Mass.  509  —  22 
Purdy  v.  People,  4  Hill  (N.  Y.)  384  —  65 


Quong  Wo,  Ex  parte,   161  Cal.  220 
332 


Rapp  &  Son  v.  Kiel,  159  Cal.  702  —  330 
Rathbone  v.  Wirth,    150  N.   Y.  459  — 

14,  41 

Redell   v.    Moores,    63    Neb.    219  —  13, 

15,  256 

Reeves    v.    Anderson,    13    Wash.    17  — 

221,  413,  415,  417,  419,  423,  424 
Robert  v.  Police  Court  of  San  Francisco, 

148  Cal.  131  —  375,  377 
Rogers  v.  Common  Council  of  Buffalo, 

123  N.  Y.  173  —  42 
Rothschild  v.  Bantel,  152  Cal.  5  —  211, 

213 
Russell,  Matter  of,  163  Cal.  668  —  352, 

361,  362 
Russell  v.  Sebastian,  233  U.  S.   195  — 

347,  349,  353 
Russell  v.  Town  of  Columbia,  74    Mo. 

480  —  191 


S 


St.  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623  — 
181,  186,  188 


St.   Louis  v.  Bentz,    11   Mo.   61  —  140, 

141,  181 

St.  Louis  v.  Bircher,  76  Mo.  431  —  174 
St.  Louis  «.  Cafferata,  24  Mo.  94  —  139, 

141,  181 
St.  Louis  v.  De  Lassus,  205  Mo.  578  — 

139 
St.  Louis  v.  Dorr,   145  Mo.  466  —  124, 

131,  160,  162 
St.  Louis  v.  Fischer,   167    Mo.    654  — 

179 

St.  Louis  v.  Gait,  179  Mo.  8  —  180 
St.  Louis  v.  Gloner,  210  Mo.  502  —  182 
St.  Louis  v.  Heitzeberg  etc.  Co.,  141  Mo. 

375  —  181 
St.   Louis  v.  Kaime  etc.   Co.,   180  Mo. 

309—180 

St.  Louis  v.  Meyer,  185  Mo.  583  —  130 
St.  Louis  v.  Schoenbusch,  95  Mo.  618  — 

140,  141,  180 

St.  Louis  v.  Sternberg,  69  Mo.  289  —  173 
St.  Louis  Rd.  Co.  v.  South  St.  Louis  Rd. 

Co.,  72  Mo.  67  —  150,  152,  157 
St.  Paul  v.  Briggs,  85  Minn.  290  —  467 
St.  Paul  v.  Haugbro,  93  Minn.  59  —  469 
Sala  v.   Pasadena,    162   Cal.   714  —  341 
San  Diego  v.    Potter,    153    Cal.    288  — 

285 
San  Francisco  v.  Canavan,  42  Cal.  541  — 

20 
Santa  Cruz  ».  Enright,  95  Cal.   105  — 

336 
Santa  Rosa  v.  Bower,   142  Cal.  299  — 

220 
Saratoga    Springs    v.    Van    Norder,    75 

N.  Y.  App.  Div.  204  —  42 
Schigley  v.  Waseca,  106  Minn.  94  —  488 
Schwartz  v.  People,  46  Col.  239  —  551 
Scott  ».  Boyle,  164  Cal.  321  —  331 
Scurry  v.   Seattle,   8   Wash.   278  —  446 
Seattle  v.  Clark,  28  Wash.  717  —  435, 

448,  449 
Seattle   v.    Goldsmith,    73   Wash.    54  — 

405 
Seattle  Electric  Co.  v.  Seattle,  78  Wash. 

203  —  443 
Security    Savings    Bank     etc.     Co.     v. 

Hinton,  97  Cal.  214  —  277,  340 
Senate  Bill,  In  re,  12  Col.  188  —  48 
Senecal   v.    West   St.    Paul,    111    Minn. 

253  —  489 

Seymour  v.  Tacoma,  6  Wash.  138  —  436 
Shawnee    County    v.    Carter,    2    Kans. 

115  —  25 


TABLE    OF    CASES 


693 


Shearer    v.    Board    of    Supervisors,    87 

N.  W.  789  —  25 
Sheehan  v.  Scott,    145  Cal.   684  —  210, 

364 

Shepard  v.  Seattle,  59  Wash.  363  —  404 
Sing  Lee,  Ex  parte,  96  Cal.  354  —  324 
Sinton  v.  Ashbury,  41  Cal.  525  —  20, 

275 
Slater  v.  Fire  and  Police  Board  of  Denver, 

43  Col.  225  —  551 
Smith,  In  re,  143  Cal.  368  —  324 
Smith    v.     Indianapolis    St.     R.     Co., 

158  Ind.  425  —  79,  80 
Smith  v.  Seattle,  25  Wash.  300  —  434 
Socialist  Party  v.  Uhl,   155  Cal.  776  — 

267,  393 

Soto,  Ex  parte,  88  Cal.  624  —  379 
South    McAlester-Eufaula    Tel.    Co.    v. 

State  ex  rel,  25  Okla.  524  —  572 
South  Pasadena  v.  Pasadena  Land  etc. 

Co.  152  Cal.  579  —  347 
Sparks,  Ex  parte,   120  Cal.  395  —  207, 

212,  244,  372 

Spaulding  v.  Andover,  54  N.  H.  38  —  20 
Speer  v.  People,  52  Col.  325  —  547 
Spokane  v.  Spokane  &  I.  E.   Rd.  Co., 

75  Wash.  651  —  442 
Spurlock  v.  Dougherty,  81  Mo.  171  — 169 
State  v.  Barker,  116  la.  96  —  13 
State  ex  rel.  v.  Barnes,  22  Okla.  191  — 

567,  570,  572 

State  ex  rel.  v.  Bell,  119  Mo.  70—129 
State  v.  Binder,  38  Mo.  451  —  154 
State  ex  rel.  v.  Board  of  Education  of 

St.  Louis,  141  Mo.  45  —  144 
State  ex  rel.  v.  Carson,  6  Wash.  250  — 

432 
State    ex    rel.    v.    Cincinnati,    20    Oh. 

St.  18  —  70,  72,  73 

State  v.  Collins,  107  Minn.  500  —  492 
State  ex  rel.  v.  Covington,  29  Oh.  St. 

102  —  256 

State  v.  Cowan,  29  Mo.  330  —  141 
State  ex  rel.   v.   Dalles  City,    143   Pac. 

1127  —  597 
State  ex  rel.  (Holt)  v.  Denny,  118  Ind. 

449  —  13,  256 
State  ex  rel.   (Wiesenthal)   v.  Denny,  4 

Wash.     135  —  411,     414,     415,     422, 

423,  424,  425 
State  ex  rel.  v.  Dierkes,  214  Mo.  578  — 

169 
State  ex  rel.  (Otis)  v.   District  Court  of 

Ramsey  County,  97  Minn.  147  —  472 


State  ex  rel.  (Ryan)  v.  District  Court  of 

Ramsey    County,    87    Minn.     146  — 

471,  473,  482 
State   ex  rel.   v.    District   Court   of   St. 

Louis  County,   90  Minn.  457  —  474, 

482 
State  ex  rel.  v.  Doherty,  16  Wash.  382  — 

424 
State  ex  rel.  v.   Dolan,   93   Mo.  467  — 

120,  143 
State  ex  rel.  v.  Dreger,  97  Minn.  221  — 

490 
State    ex   rel.    v.    Edwards,    107    N.    E. 

768  —  632,  642 
State  ex  rel.  v.  Fairley,  76  Wash.  332  — 

429 
State  ex  rel.  v.  Field,  99  Mo.  352  —  140, 

147,  153,  157,  166,  184,  188,  198 
State  ex  rel.  v.  Finn,  4  Mo.  App.  347  — 

120 
State   ex  rel.   v.   Flanders  24  La.  Ann. 

57  —  25 
State  ex  rel.  v.  Fleming,  112  Minn.  136 

—  490 

State  ex  rel.  v.  Fox,  158  Ind.  126  —  13 
State  ex  rel.  v.  Gates,  190  Mo.  540  — 

190 
State  ex  rel.  v.  Graham,  16  Neb.  74  — 

87,  88 

State  v.  Gustin,  152  Mo.  108  —  139 
State  ex  rel.  v.  Haben,  22  Wis.  97  —  20 
State  ex  rel.  v.  Hindley,  67  Wash.  240 

—  453 

State  ex  rel.  v.  Hugo,  84  Minn.  81  —  462 
State  ex  rel.  v.  Hunter,  38  Kans.  578  — 

256 

State  v.  Jennings,  27  Ark.  419  —  89 
State  v.  Johnson,  17  Ark.  407  —  194 
State  ex  rel.  v.  Jones,  66  Oh.  St.  453  —  73 
State  ex  rel.  v.  Justus,  90  Minn.  474  — 

496 
State  ex  rel.  v.  Kiewel,  86  Minn.  136  — 

115,  462 
State  ex  inf.  v.  Lindell  Ry.  Co.,  151  Mo. 

162  —  151 
State  ex  rel.  v.  Lynch,  88  Oh.  St.  71  — 

626,  629,  630 
State  ex  rel.  v.  McKee,  69  Mo.  504  — 

134 
State   ex   rel.    v.    Mankato,    117    Minn. 

458  —  476 

State  v.  Marciniak,  97  Minn.  355  —  492 
State  ex  rel.  (Hawes)  v.  Mason,  153  Mo. 

23  —  124,  135 


694 


TABLE    OF    CASES 


State  ex  rel.  (McCaffrey)  v.  Mason,  155 

Mo.  486  —  124 
State  ex  rel.  v.  Millar,  21  Okla.  448  — 

567 

State  ex  rel.  v.  Miller,  66  Mo.  328  —  143 
State  ex  rel.  v.  Mo.  &  Kans.  Tel.  Co., 

189  Mo.  83  —  187 
State  ex  rel.  v.  Moores,  55  Neb.  480  — 

13,  256 

State  v.  Muir,  164  Mo.  610  —  139 
State    ex    rel.    v.    O'Connor,    81    Minn. 

79  —  466,  470,  471,  472,  482 
State  ex  rel.  v.  Owsley,  122  Mo.  68  —  144 
State  ex  rel.  v.  Police  Commissioners  of 

Kansas    City,    184    Mo.     109  —  126, 

136 
State  ex  rel.  v.  Porter,  53  Minn.  279  — 

490 
State  ex  rel.  v.  Portland,  133  Pac.  62  — 

115,  596,  602,  603 
State  ex  rel.  v.  Powers,  68  Mo.  320  — 

127,   128 
State  ex  rel.  v.  Rogers,  93  Minn.  55  — 

495 
State   ex  rel.   v.   Rolla  Wells,   210   Mo. 

601  —  164 
State  ex  rel  (Belt)  v.  St.  Louis,  161  Mo. 

371  —  190 
State  ex  rel.  (Subway  Co.)  v.  St.  Louis, 

145  Mo.  551  —  188 
State  ex  rel.  v.  St.  Louis  &  San  Francisco 

Ry.  Co.,  117  Mo.  1  —  128,  132 
State  ex  rel.  v.  St.  Paul,  81  Minn.  391  — 

467 
State  ex  rel.  v.  Scales,  21  Okla.  683  — 

562 
State  ex  rel.  v.  Schweickardt,  109  Mo. 

496  —  156 
State  ex  rel.  v.   Slover,  126  Mo.  652  — 

144 

State  ex  rel.  v.  Stobie,  194  Mo.  14 —  137 
State  ex  rel.  v.  Sullivan,  67  Minn.  379  — 

490 
State  ex  rel.  (Fawcett)  v.  Superior  Court, 

14  Wash.  604  —  426,  427 
State  ex  rel.  (Hindley)  v.  Superior  Court, 

70  Wash,  352  —  114,  421 
State  ex  rel.  (Lambert)  v.  Superior  Court, 

59  Wash.  670  —  421,  422,  423 
State  ex  rel.    (Schade  Brewing  Co.)   v. 

Superior  Court,  62  Wash.  96  —  439, 

451 
State  ex  rel.  (Webster)  v.  Superior  Court, 

67  Wash.  37  —  403,  440 


State  ex  rel.  v.  Sutton,  3  Mo.  App.  388  — 

120 
State  ex  rel.  v.  Thomas,  102  Mo.  85  — 

182 

State  v.  Tower,  185  Mo.  79  —  182 
State  ex  rel.  v.  Walbridge,  119  Mo.  383  — 

164 

State  ex  rel.  v.  Wapello,  13  la.  388  —  58 
State  ex  rel.  v.  Warner,  4  Wash.  773  — 

407 

State  ex  rel.  v.  Weir,  26  Wash.  501  —  427 
State  ex  rel.  v.  West,  29  Okla.  503  —  580 
State  ex  rel.  v.  Wilson,  12  Lea  (Tenn.) 

246  —  89,  90 

State  v.  Woodward,  23  Vt.  92  —  566 
State  ex  rel.  v.  Zimmerman,  86  Minn. 

353  —  470 
Staude   v.    Election    Commissioners,    61 

Cal.   313  —  234,   237,   241,   248,   268, 

371 
Stearns  v.  State  ex  rel.,  23  Okla.  462  — 

563 
Stockton  Gas  etc.   Co.  v.   San  Joaquin 

County,  148  Cal.  313  —  347 
Street  v.  Varney  etc.  Co.,  160  Ind.  338  — 

26,  406 

Stuart,  In  re,  61  Cal.  374  —  324 
Sugden  v.  Partridge,  174  N.  Y.  87  —  42 
Sunset  Teleph.  &  Teleg.  Co.  v.  Pasadena, 

161    Cal.    265  —  309,    349,    350,    645 
Sylvester  Coal  Co.  ».  St.  Louis,  130  Mo. 

323  —  179 
Syracuse  v.  Hubbard,  64  N.  Y.  App.  Div. 

587  —  25,  40 


Tacoma  v.   Boutelle,   61   Wash.  434  — 

438 

Tacoma  v.  Keisel,  68  Wash.  685  —  405 
Tacoma   v.   State,   4' Wash.    64  —  429, 

433 
Tacoma   Gas   etc.    Co.   ».   Tacoma,    14 

Wash.  288  —  436 

Thomas   «.    Board,    5   Ind.   4  —  78,    81 
Thomas  v.  St.  Cloud,  90  Minn.  477  — 

496 
Thomason  v.  Ashworth,   73   Cal.   73  — 

237,  268,  272 
Thomason   v.    Ruggles,    69   Cal.   465^ 

236,  276 

Thune  v.  Hetland,  114  Minn.  395  —  493 
Town   of   Flatbush,    In   the   Matter   of 

Lands  in,  60  N.  Y.  398  —  51 


TABLE   OF   CASES 


695 


Town  of  Milwaukee  v.  City  of  Mil- 
waukee, 12  Wis.  103  —  20 

Trustees  v.  Bradbury,  11  Me.  118  —  20 

Tulsa,  In  re  Submission  of  Bonds  of, 
31  Okla.  648  —  580,  581 

Turner  v.  Snyder,  101  Minn.  481  — 
485 

Tuttle,  Ex  parte,  91  Cal.  589  —  324 


U 


Union  Depot  Rd.  Co.  v.  Southern  Ry. 
Co.,  105  Mo.  562  —  193,  195 


Van  Der  Creek  v.  Spokane,  78  Wash. 

94  —  433 
Vicksburg  v,  Vicksburg  Waterworks  Co., 

202  U.  S.  453  —  361 
Village  of,  see  name  of  village 
Virginia  «.  Chollar-Potosi  G.  &  S.   M. 

Co.,  2  Nev.  609  —  87 
Von  Phul  v.  Hammer,  29  la.  222  —  84 
Von  Schmidt  v.  Widber,  105  Cal.  151  — 

330,  331 

W 

Wade   v.   Tacoma,    4   Wash.    85  —  411 
Walker   v.   Spokane,    62   Wash.    312  — 

421,  452 
Warner    &    Ray    v.    Beers,    23    Wend. 

(N.  Y.)   103  —  65 

Warren  v.  Evansville,  106  Ind.  104  —  77 
Webb  v.  Mayor  etc.  of  New  York,  64 

How.  Pr.  (N.  Y.)  10  —  20 
Welsh  v.   St.   Louis,  73   Mo.  71  —  191 
Westport    v.    Kansas    City,     103    Mo. 

141  —  147 
Wetmore,    In   re,    99    Cal.    146  —  298, 

300,  301,  304 


White,  Ex  parte,  67  Cal.  102  —  324 
White  Townsite  Co.  v.  Moorhead,   120 

Minn.  1  —  486 
Whiting,    In    the    Matter   of,    2    Barb. 

(N.  Y.)  513  —  37,  42 
Wider  v.  East  St.  Louis,  55  111.  133  — 

49 

Wiggin  v.  St.  Louis,  135  Mo.  558  —  166 
Wiley  v.  Bluff  ton,  111  Ind.  152  —  77 
Wiley  v.  Silliman,  62  111.  170  —  25,  49 
Williams  v.  Eggleston,  170  U.  S.  304  — 

27 
Williams  v.  People,  38  Col.  497  —  541, 

542,  543 

Williams  v.  St.  Paul,  123  Minn.  1  —  473 
Williams  ».  Town  of  Roberts,  88  111. 

11  —  25,  49 

Willison  ».  Cooke,  54  Col.  320  —  550 
Winters  v.  Duluth,  82  Minn.  127  —  487 
Wolfe  t>.  Moorhead,  98  Minn.  113  — 

464 

Welters,  Ex  parte,  65  Cal.  269  —  324 
Wood  v.  Election  Commissioners,  58 

Cal.  561  —  234 
Woodward  v.   Fruitvale  Sanitary   Dist. 

99  Cal.  554  —  47 
Wyandotte  v.  Wood,  5  Kans,  603  —  86 


Yarnell  v.  Los  Angeles,  87  Cal.  603  — 

47,  211,  239 
Yick  Wo,   In   the   Matter  of,   68  Cal. 

294  —  324 
Young  v.  Kansas  City,  152  Mo.  661  — 

188 
Young  v.  Mankato,  97  Minn.  4  —  461 


Zhizhuzza,  In  re,   147  Cal.  328  —  324 


INDEX 


ACCOUNTS, 

power  of  California  cities  to  regulate 
public  utility,  348 

power  to  regulate  municipal,  reserved 
to  legislature  by  Michigan  enabling 
act,  610 

Ohio  legislature  may  regulate  muni- 
cipal, 624 

See  also  Financial  powers 
ADJECTIVE    POWER    OF    CHAR- 
TER-MAKING, 

as  contrasted  with  substantive  powers 

of  home  rule,  625-629,  668,  669 
ALABAMA, 

protection  of  municipal  taxation  in,  53 

municipal  debt  limit  in,  54 

limitation  on  legislative  grants  of  street 
franchises  in,  62 

prohibition  on  special  legislation  for 

cities  in,  95 
AMENDMENT, 

of  home  rule  charters,  table  of  provi- 
sions regulating  procedure  for,  115, 
117 

of  home  rule  or  legislative  charters, 
procedure  for,  in  Oregon,  Michigan, 
and  Texas,  115,  117 

of  home  rule  charters  in  Missouri, 
procedure  for,  119,  121 

of  home  rule  charter  necessary  for 
annexation  of  territory  in  Missouri, 
146-149 

of  home  rule  charters  in  California, 
procedure  for,  203,  221-223,  226- 
228,  418,  419 

of  home  rule  charters  in  California, 
limitation  on  frequency  of,  203,  221, 
225-227 

of  home  rule  charters  in  Washington, 
procedure  for,  397 

of  home  rule  charter  not  necessary  for 
annexation  of  territory  in  Wash- 
ington, 407-HllO 


of  charters,  power  of  home  rule  cities 
of  Washington  to  regulate  procedure 
for,  411^25 

extent  to  which  home  rule  charters  in 
Washington  have  in  practice  regu- 
lated procedure  for  their  own,  411, 
424,  425 

of  home  rule  charters  in  Minnesota, 
procedure  for,  458,  460-465 

of  home  rule  charters  in  Minnesota, 
function  of  board  of  freeholders  in 
respect  to,  460,  461 

of  home  rule  charters,  majority  re- 
quired in  Minnesota  for  adoption 
of,  462,  463 

of  home  rule  charters  in  Minnesota  by 
laws  applicable  to  classes  of  cities, 
493^97 

of  home  rule  charters  in  Colorado,  502, 
503,  552 

of  charters,  power  of  home  rule  cities 
of  Colorado  to  regulate  procedure 
for,  547,  548 

of  home  rule  charters  in  Oklahoma, 
procedure  for,  559,  560,  564,  565 

of  existing  legislative  charters  per- 
mitted in  Oregon,  592,  594 

of  charters,  power  of  Oregon  cities  to 
regulate  initiative  and  referendum 
procedure  for,  596-598 

of  charters  in  Michigan,  limitation  im- 
posed on  frequency  of,  by  Michigan 
enabling  act,  611 

of  charters,  procedure  for,  determined 
by  Michigan  enabling  act,  612-614 

of  existing  legislative  charters  per- 
mitted in  Michigan  after  constitu- 
tional amendment  of  1912,  613- 
618 

of  home  rule  charters  in  Ohio,  proce- 
dure for,  622,  623,  637 

of  home  rule  charters  in  Nebraska,  646, 
647 


697 


698 


INDEX 


AMENDMENT  —  Continued 

of  charters  in  Texas,  limitation  im- 
posed by  constitution  on  frequency 
of,  650 

of  charters  in  Texas,  procedure  for, 
determined  by  enabling  act,  651,  652 

of  existing  legislative  charters  per- 
mitted in  Texas,  652 

discussion  of  plan  of  permitting  home 
rule  charters  to  provide  procedure 

•    for  their  own,  663,  664,  681,  682 

of  existing  legislative  charters,  discus- 
sion of  plan  of  granting  cities  power 
of,  667 
ANNEXATION   OF   TERRITORY, 

to  St.  Louis,  constitutional  provision 
for,  118,  146 

can  be  effected  only  by  state  law  and 
charter  amendment  in  Missouri, 
146-149 

as  compared  with  separation  of  terri- 
tory, 247 

regulation  of,  is  not  a  "municipal 
affair"  in  California,  269-271,  334, 
335,  359,  409 

to  consolidated  cities  and  counties  in 
California,  395 

can  be  effected  only  under  state  law  in 
Washington,  407-410 

no  case  in  Minnesota  involving,  474, 
475 

enabling  act  in  Minnesota  does  not 
authorize  cities  to  regulate,  475 

regulated  by  general  laws  in  Colorado, 
499 

difficulties  in  respect  to,  in  Oregon, 
600-602 

constitutional  amendment  in  respect 
to,  in  Oregon,  601,  602 

regulations  for,  prescribed  by  Michi- 
gan enabling  act,  611,  612 

power,  to  regulate,  granted  to  Texas 
cities  by  enabling  act,  653 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
APPOINTMENT, 

of  boards  to  draft  home  rule  charters 
and  amendments  in  Minnesota,  114, 
457,  460-462 

of  municipal  boards  in  Denver,  by  gov- 
ernor, abolished  by  home  rule  pro- 
vision of  constitution,  498,  526,  527 


by  some  city  authority  of  bodies 
to  draft  charters,  general  discus- 
sion of,  as  a  means  of  making 
home  rule  grant  self-executing, 
662,  663 
ARIZONA, 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  589 

home  rule  cities  in,  117,  589 

text  of  home  rule  provision  of  consti- 
tution of,  589 

enabling  act  in,  589,  590 
ARKANSAS, 

protection  of  municipal  taxation  in,  53 

municipal  debt  limit  in,  54 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 

prohibition  on  special  legislation  for 

cities  in,  88,  89,  95 
ASSESSMENTS, 

See  Taxation 
AUDITORIUM, 

power  of  home  rule  city  in  Colorado 
to  erect,  531-535 

See  also  Convention  hall,  Motion-picture 
theater,  Opera  house 

BOARDS   OF   EDUCATION, 

See  Education 
BOARDS   OF   FREEHOLDERS, 

See  Freeholders 
BOARDS   OF   HEALTH, 

See  Health 
BONDS, 

conflicts  in  California  between  statutes 
and  charters  in  respect  to  issuance 
of  municipal,  282-285 

extent  of  regulation  by  home  rule 
charters  in  California  of  issuance  of 
municipal,  285,  339 

control  over  issuance  of,  for  educa- 
tional purposes  in  California,  298- 
306 

city  is  bound  by  law  in  California  if 
charter  adopts  law  in  respect  to 
issuance  of  municipal,  339 

of  contractors,  conflict  in  Minnesota 
between  charter  and  previously 
enacted  state  law  in  respect  to  re- 
quirement of,  480-485 


INDEX 


699 


BONDS  —  Continued 

for  acquisition  of  utilities,  Colorado 
cities  authorized  by  constitution  to 
issue,  499,  503 

for  construction  of  auditorium,  power 
of  home  rule  cities  of  Colorado  to 
issue,  531-535 

power  conferred  on  home  rule  cities 
of  Colorado  to  regulate  issuance  of, 
by  constitutional  amendment  of 
1912,  553,  557 

for  construction  of  convention  hall 
held  to  be  public  utility  bonds  in 
Oklahoma,  567-574 

home  rule  cities  of  Oklahoma  au- 
thorized by  enabling  act  to  issue, 
for  numerous  purposes,  571 

of  home  rule  cities,  power  in  Oklahoma 
to  establish  state  supervision  of 
issuance  of,  580,  581 

referendum  in  Oklahoma  on  issuance 
of  municipal,  581 

limitations  imposed  by  Michigan  ena- 
bling act  onissuanceof  municipal,  61 1 

for  acquisition  of  public  utilities,  limi- 
tations imposed  by  Michigan  con- 
stitution on  issuance  of,  611 

to  pay  for  excess  property  condemned, 
Ohio  cities  authorized  by  constitu- 
tion to  issue,  623,  641 

for  acquisition  of  public  utilities,  limi- 
tations imposed  by  Ohio  constitu- 
tion on  issuance  of,  623,  624,  641 

of  home  rule  cities,  referendum  to  tax- 
paying  voters  required  by  Texas 
enabling  act  on  issuance  of,  652,  653 

of  home  rule  cities,  provision  in  Texas 
enabling   act  for   state   supervision 
of  issuance  of,  653 
BOULEVARDS, 

See  Parks,  Streets 
BOUNDARIES,    MUNICIPAL, 

See  Annexation  of  territory,  Separation 

of  territory 
BRIDGES, 

power  of  home  rule  cities  of  Missouri 
in  respect  to,  163 

CALIFORNIA, 

prohibition  against  special  city  com- 
missions in,  46,  47 

protection  of  municipal  taxation  in, 
52,  53 


municipal  debt  limit  in,  54 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 

limitation  on  legislative  interference 
with  streets  in,  60 

limitation  on  special  laws  for  private 
corporations  in,  68 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  powers  in,  114, 115,  202,  203, 
208,  220-228 

home  rule  cities  in,  115,  204,  229,  230 

legal  nature  of  home  rule  charter  in, 
200-220 

text  of  home  rule  provisions  of  consti- 
tution of,  202,  203,  226-228,  319, 
370,  371,  391-395 

conflict  between  statutes  and  charter 
provisions  in,  229-321,  373-386 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
322-395 

specific  powers  conferred  on  home  rule 

cities  in,  370-395 
CHARTER   COMMISSIONS, 

See  Commissions 
CHARTER   CONVENTIONS, 

See  Conventions 
CHARTER-MAKING   POWER, 

nominally  conferred  in  Iowa  by  general 
law,  82-85 

weight  of  authority  against  power  of 
legislature  to  delegate,  84 

not  conferred  by  general  law  in  Illi- 
nois as  expected,  92,  93 
does  not  result  from  requirement  of 
general  legislation  for  cities,  96-98, 
100,  101 
essential  to  grant  of  home  rule  powers, 

110 

granted  to  cities  in  Missouri,  California, 
Washington,  Minnesota,  Colorado, 
Oregon,  Oklahoma,  Michigan, 
Arizona,  Ohio,  Nebraska,  and  Texas, 
113-117 

table  of  provisions  regulating  proce- 
dure for  exercise  of,  in  the  several 
home  rule  states,  114-117 
procedure  for  exercise  of,  in  Missouri, 

118-122 
extent  of  exercise  of,  in  Missouri,  120 


700 


INDEX 


CHARTER-MAKING  POWER—  Con. 

scope  of,  in  Missouri  in  absence  of 
conflict  with  statutes,  172-199 

a  continuing  right  in  Missouri,  197, 
198 

not  originally  continuing  in  California, 
198,  221,  222,  418,  419 

arguments  for  and  against  grant  of, 
in  California  convention  of  1879, 
200-202 

legal  nature  of,  in  California,  200-220 

legislative  veto  on,  in  California,  200- 
220 

procedure  for  exercise  of,  in  California, 
202,  203,  208,  220-228,  416 

scope  of,  in  California  in  absence  of 
conflict  with  statutes,  210,  211,  322- 
395 

constitutional  amendments  in  Cali- 
fornia in  respect  to  procedure  for 
exercise  of,  223-228 

exercise  of,  made  continuing  in  Cali- 
fornia, 224 

grant  of,  declared  to  be  self-executing 
in  California,  259-267 

no  regulation  by  charters  of  procedure 
for  exercise  of,  in  California,  266,  267 

effect  of  California  constitutional 
amendment  of  1914  upon  scope  of, 
368,  369 

specific  powers  conferred  in  California 
in  addition  to  general  grant  of,  370- 
395 

procedure  for  exercise  of,  in  Washing- 
ton, 396,  397,  411^25 

scope  of,  in  Washington  in  absence  of 
conflict  with  statutes,  400-402,  404- 
407,  425-431,  433-440,  442,  445- 
449,  451-455 

a  continuing  right  in  Washington,  413, 
414,  418,  419 

procedure  for  exercise  of,  in  Minne- 
sota, 457-459,  460-465 

constitutional  amendment  abolishing 
extraordinary  majorities  required 
for  exercise  of,  defeated  in  Minne- 
sota, 463 

scope  of,  in  Minnesota  in  absence  of 
conflict  with  statutes,  465-480,  490- 
492 

reasons  for  grant  of,  in  Colorado,  498 

procedure  for  exercise  of,  in  Colorado, 
500-503,  547-549 


Denver  compelled  to  exercise,  501,  505 

constitutional  enumeration  in  Colorado 
of  certain  powers  embraced  within 
general  grant  of,  499,  500,  502,  504, 
505 

scope  of,  in  Colorado  in  absence  of 
conflicting  statute,  499-505,  517- 
521,  524-526,  531-537,  541-543, 
549-551,  552-557 

procedure  for  exercise  of,  in  Okla- 
homa, 558-560,  562-565 

scope  of,  in  Oklahoma  in  absence  of 
conflicting  statute,  564-574,  581- 
583,  586-588 

procedure  for  exercise  of,  in  Arizona, 
589 

procedure  for  exercise  of,  in  Oregon, 
591,  594-600 

procedure  for  exercise  of,  in  Michigan, 
591,  612-620 

cities  of  Oregon  in  effect  compelled  to 
exercise,  591-593 

cities  of  Michigan  in  practice  com- 
pelled to  exercise,  591,  609 

power  of  Oregon  cities  to  regulate  pro- 
cedure for  exercise  of,  596-600 

power  of  Oregon  legislature  to  regulate 
procedure  for  exercise  of,  in  absence 
of  regulation  by  city,  598-600 

experience  of  Portland  in  respect  to 
exercise  of,  598,  599 

scope  of,  in  Oregon  in  absence  of  con- 
flicting statute,  600-604 

scope  of,  determined  by  enabling  act 
in  Michigan,  609-612,  619 

exercise  of,  by  piecemeal  amendment 
of  legislative  charters  in  Michigan, 
614-618 

procedure  for  exercise  of,  in  Ohio,  622, 
623,  637 

scope  of,  in  Ohio  in  absence  of  conflict- 
ing statute,  625-630 

local  self-government  in  Ohio  may  be 
exercised  only  through  medium  of, 
625-629 

procedure  for  exercise  of,  in  Nebraska, 
646-648 

procedure  for  exercise  of,  determined 
by  enabling  act  in  Texas,  651,  652 

scope  of,  under  enabling  act  in  Texas, 
653-655 

general  discussion  of  difficulties  arising 
out  of  grant  of,  656-684 


INDEX 


701 


CHARTER-MAKING  POWER—  Con. 

general  discussion  of  procedure  for 
exercise  of,  656—667 

discussion  of  grant  of,  in  relation  to 
substantive  powers  of  home  rule, 
668-669 

discussion  of  grant  of,  in  general  terms, 
669-673 

discussion  of  grant  of,  made  ex- 
pressly "subject  to"  constitution, 
674,  675 

discussion  of  grant  of,  made  "subject 
to"  general  laws,  676,  677 

discussion  of  grant  of,  made  "subject 
to"  laws  of  general  application  to 
cities,  677-682 

discussion  of  grant  of,  made  "subject 
to"  laws  of  general  or  state  concern, 
682-684 
CITIES,   HOME   RULE, 

number  of,  in  the  several  states,  115, 
117 

in  Missouri,  120 

in  California,  204,  229,  230 

in  Washington,  397,  398 

in  Minnesota,  458,  459 

in  Colorado,  505,  506,  560 

in  Arizona,  589 

in  Oregon,  593,  594 

in  Michigan,  612,  613 

in  Ohio,  624,  625 

in  Nebraska,  649 

in  Texas,  650 
CITY   COMMISSIONS, 

See  Commissions 
CITY   OFFICERS, 

See  Officers 
CIVIL  SERVICE  REQUIREMENTS, 

for  county  officers,  consolidated  city 
and  county  in  California  had  no 
power  to  impose,  388-390 

for  county  officers,  consolidated  city 
and  county  in  California  granted 
power  by  constitutional  amendment 
of  1911  to  impose,  393 

for  fire,  police,  and  public  works  de- 
partments, Denver  required  by  con- 
stitution to  provide  in  home  rule 
charter,  500 

for  city  officers,  conflict  in  respect  to, 
between  statute  and  charter  provi- 
sion in  Ohio,  642-643 

See  also  Officers 


CLAIMS   AGAINST   CITIES, 

validation  of,  and  due  process  of  law, 
25,  26 

conflicts  in  respect  to,  between  stat- 
utes and  charters  in  Missouri,  165- 
171 

due  process  of  law  in  relation  to,  165, 
169,  342 

power  of  home  rule  cities  in  California 
to  regulate  matters  pertaining  to, 
340-343 

power  of  home  rule  cities  in  Washing- 
ton to  regulate  matters  pertaining 
to,  445-448 

power  of  home  rule  cities  of  Minnesota 
to  regulate  matters  pertaining  to, 
474 

conflict  in  respect  to,  between  charter 
and  previously  enacted  statute  in 
Minnesota,  481-485,  487-490 

complication  over,  in  Colorado,  as  re- 
sult of  consolidation  of  city  and 
county,  529 

doubts  in  respect  to  cities'  power  over, 
under  general  grant  of  home  rule 
powers,  671 
CLASSIFICATION    OF   CITIES, 

in  Ohio,  71,  73,  621 

in  Indiana,  77-80 

in  Iowa,  82 

in  Kansas,  86 

in  Nebraska,  88 

in  Arkansas,  89 

in  Tennessee,  90 

practice  of,  in  general,  98,  99 

in  New  York,  101 

in  Missouri,  123-125,  161,  162,  171 

in  California,  202,  233,  236,  319 

in  Washington,  398,  399,  456 

in  Minnesota,  458,  480,  483,  484,  493- 
497 

in  Colorado,  503,  505,  556 

in  Oklahoma,  575-577 

in  Texas,  possibility  of,  652 

discussion  of  prohibition  against,  in 
relation  to  powers  of  legislature  to 
prescribe  home  rule  procedure,  660 

into  home  rule  cities  and  cities  under 
legislative  charters,  discussion  of 
advisability  of,  664-667,  681,  682 

discussion  of,  in  relation  to  power  of 
legislature  to  define  the  scope  of 
home  rule  powers,  681 


702 


INDEX 


COLORADO, 

prohibition  against  special  city  com- 
missions in,  46-48 

protection  of  municipal  taxation  in, 
51,  52 

municipal  debt  limit  in,  54 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 

limitations  on  legislative  grants  of 
street  franchises  in,  62 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  powers  in,  114,  115,  500-503 

home  rule  cities  in,  115,  505,  506 

text  of  home  rule  provisions  of  consti- 
tution of,  498-504,  552-554 

specific  powers  conferred  on  home  rule 
cities  in,  499,  500,  502,  504,  505 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
499-505,  517-521,  524-526,  531-537, 
541-543,  552-557 

constitutionality  of  the  home  rule  pro- 
visions of  constitution  of,  506-526, 
543-547 

conflict  between  statutes  and  charter 
provisions  in,  506-516,  522,  535- 
547,  551,  552 

COMMISSION     FORM     OF     CITY 
GOVERNMENT, 

movement  for,  in  Spokane  obstructed 
by  council,  420,  421 

power  of  Washington  home  rule  cities 
to  establish,  is  referable  to  statute, 
452,  453 

health  department  in  relation  to,  as 
established  in  Washington,  453-455 

adopted  in  St.  Paul  by  charter  amend- 
ment, 463 

home  rule  cities  not  prohibited  by 
Minnesota  constitution  from  adopt- 
ing, 476-479 

home  rule  cities  in  Minnesota  au- 
thorized by  enabling  act  to  adopt, 
476-479 

adoption  of,  in  Denver  by  charter 
amendment  sustained,  548,  549 

provided  by  most  home  rule  charters 
of  Oklahoma  cities,  560 

validity  of,  sustained  in  Oklahoma, 
576-578 


COMMISSIONS, 

special  city,  created  by  legislature  in 
New  York,  35,  36 

prohibitions  against  state  appointment 
of  city,  45-48 

to  draft  home  rule  charters,  114-117 

fire  and  police,  and  public  works,  of 
Denver,  500 

election  of,  to  draft  charters  in  Michi- 
gan, not  prohibited  by  grant  of  char- 
ter-making power  to  electors,  613, 614 

expenses  of,  to  draft  charters  in  Michi- 
gan, 619 

election  of,  to  draft  charters  in  Ohio, 
622,  624,  637 

election  of,  to  draft  charters  in  Texas, 
provided  by  enabling  act,  652 

to  draft  charters,  general  discussion  of 
location  of  power  to  regulate  elec- 
tion of,  660-662 

to  draft  charters,  discussion  of  ap- 
pointment of,  662-663 

See  also  Conventions,  Corporation  com- 
mission, Freeholders,  Public  service 
commission,  Railroad  commission 
COMMON  LAW,  POWER  OF  HOME 
RULE  CITY  TO  ALTER  PRIN- 
CIPLES OF, 

in  Washington,  447 

in  Minnesota,  488,  489 
CONFLICT     BETWEEN     CONSTI- 
TUTIONS   AND    HOME    RULE 
CHARTERS, 

general  discussion  of,  674-676 
CONFLICT   BETWEEN    STATUTES 
AND  HOME  RULE  CHARTERS, 

in  Missouri,  118-171 

in  California,  229-321,  373-386 

in  Washington,  398,  399,  403,  404, 
429,  432^34,  438,  440,  442-445, 
450,  451,  456 

in  Minnesota,  459,  480-497 

in  Colorado,  506-516,  522,  535-547, 
551,  552 

in  Oklahoma,  574-581,  583-586,  588 

in  Arizona,  590 

in  Oregon,  603,  604 

in  Ohio,  630-645 

origin  of,  in  home  rule  provisions,  670 

general  discussion  of,  676-684 
CONNECTICUT, 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 


INDEX 


703 


CONSOLIDATION    OF    CITY    AND 
COUNTY  GOVERNMENTS, 

power  to  effect,  granted  to  cities  in 
California  by  constitutional  amend- 
ment of  1914,  395 

of  Denver  effected  directly  by  consti- 
tution, 498-500,  504 

of  Denver,  legal  difficulties  arising  out 
of,  506-531 

inherent  difficulties  in,  531 

See  also  County  officers,  "  Scheme  " 
CONSTRUCTION   OF   CHARTERS, 

See    Strict   construction   of  home   rule 

charters 
CONTRACTS, 

impairment  of  obligation  of,  as  applied 
to  relations  between  city  and  state, 
18-21 

city's  freedom  of,  not  secured  by 
guarantee  of  due  process  of  law,  26, 
406,  538 

conflicts  in  respect  to,  between  statutes 
and  charters  in  Missouri,  169-170 

conflicts  in  respect  to,  between  statutes 
and  charters  in  California,  209 

power  of  cities  in  California  to  con- 
struct public  works  by,  or  by  direct 
employment  of  labor,  338,  339 

arising  under  California  constitutional 
provision  relating  to  water  and  light- 
ing companies,  353,  354 

did  not  arise  out  of  power  of  Washing- 
ton cities  to  grant  franchises,  440, 
441 

conflict  in  respect  to,  between  charters 
and  previously  enacted  statutes  in 
Minnesota,  480-485 

conflict  in  respect  to,  between  charters 
and  statutes  in  Colorado,  538-541 

city's  freedom  of,  not  secured  in 
Colorado  by  grant  of  home  rule 
powers,  538-541 

See  also  Franchises,  Freedom  of  con- 
tract 
CONVENTION   HALL, 

held  to  be  a  public  utility  in  Oklahoma, 
and  as  such  within  power  of  city  to 
construct,  567-570 

See    also    Auditorium,    Motion-picture 

theater,  Opera  house 
CONVENTIONS, 

election  of,  to  draft  charters  in  Ne- 
braska, 646-648 


See  also  Commissions,  Freeholders 
CORPORATE   PURPOSE, 

taxation  for,  26,  48-55,  258,  259,  420 

See  also  Public  purpose 
CORPORATION   COMMISSION, 

in  Oklahoma,  power  of,  over  utilities 
in  cities,  572-574 

See    also    Public    service    commission, 

Railroad  commission 
COUNTY   OFFICERS, 

distinguished  from  city  officers,  under 
consolidated  government  of  San 
Francisco,  248,  250 

control  over,  conferred  upon  consoli- 
dated cities  and  counties  in  Cali- 
fornia by  constitutional  amendment 
of  1896,  371,  372 

power  of  consolidated  city  and  county 
in  California  to  control  compensa- 
tion of,  387,  388,  390,  391 

consolidated  city  and  county  in  Cali- 
fornia had  no  power  to  provide 
civil  service  requirements  for,  388- 
390 

consolidated  city  and  county  in  Cali- 
fornia granted  power  by  constitu- 
tional amendment  of  1911  to  pro- 
vide civil  service  requirements  for, 
393 

in  consolidated  city  and  county  of 
Denver,  constitutional  provisions  re- 
lating to,  500 

in  consolidated  city  and  county  of 
Denver,  legal  difficulties  that  arose 
concerning,  506-531 

in  consolidated  city  and  county  of  Den- 
ver, constitutional  provisions  in  re- 
spect to,  nullified  by  court,  509-513 

extent  of  power  of  consolidated  city 
and  county  of  Denver  over,  510,  511 

in  city  and  county  of  Denver  constitu- 
tional provisions  in  respect  to,  finally 
sustained,  513-516 

judge  of  county  court  in  Denver  not 
included  among,  514-516 

See  also  Consolidated  cities  and  coun- 
ties, Officers 
COURTS, 

See  Jurisdiction  of  state  courts,  Juvenile 
courts,     Municipal     courts,     Police 
courts 
CURATIVE   ACTS, 

power  of  legislature  to  enact,  24 


704 


INDEX 


DAMAGE   CLAIMS, 

See  Claims 
DEBT   LIMIT,    MUNICIPAL, 

imposed  by  various  constitutions,  53-55 

not  imposed  by  California  constitu- 
tion, 282 

imposed  by  home  rule  charters  in 
California,  282,  285 

imposed  by  enabling  act  in  Minnesota, 
486,  487 

imposed  by  Oklahoma  constitution, 
581 

imposed  by  Michigan  enabling  act,  611 

may  be  imposed  by  law  in  Ohio,  624 
DEBTS,    MUNICIPAL, 

See  Bonds,  Debt  limits 
DIRECT   LEGISLATION, 

See  Initiative,  Referendum 
DUE   PROCESS   OF   LAW, 

as  applied  to  relations  between  city 
and  state,  21-27 

prevents  legislature  from  conveying 
municipal  property  to  a  private  per- 
son, 22,  23 

as  applied  to  legislative  conveyance  of 
city  property  to  other  public  agen- 
cies, 23,  24 

as  applied  to  curative  statutes  gen- 
erally, 24 

as  applied  to  acts  validating  claims 
against  cities,  25,  26 

as  applied  to  acts  compelling  taxation 
for  local  purposes,  26 

as  applied  to  city's  freedom  of  contract, 
26,  406,  538,  541 

in  relation  to  home  rule  city's  power 
to  regulate  claims  against  itself, 
165,  169,  342 

in  issuance  of  municipal  bonds,  284 

in  relation  to  municipal  ownership  of 
public  utilities  in  California,  360,  361 

in  relation  to  power  of  Minnesota 
cities  to  regulate  special  assessments, 
473 

in  relation  to  city's  exercise  of  police 
power  in  Colorado,  549-551 

EDUCATION, 

conflicts  in  respect  to,  between  stat- 
utes and  charters  in  California,  295- 
308 

California  constitutional  provision  in 
respect  to,  295,  296 


in  California,  statutory  grant  of 
power  to  cities  in  respect  to,  296- 
298 

California  decisions  in  respect  to,  ir- 
reconcilable, 296-308 

in  California,  in  relation  to  police 
power,  306-308 

power  of  California  cities  in  respect 
to,  in  absence  of  conflicting  statute, 
344,  345 

California  constitutional  amendments 
of  1896  and  1911  granting  power  to 
home  rule  cities  in  respect  to,  370, 
371,  392,  393 

in  Denver,  constitutional  provision 
relating  to,  503-505 

subject  to  regulation  by  statutes  in 
Colorado,  505,  556 

conflict  in  respect  to,  between  stat- 
ute and  charter  in  Oklahoma,  585, 
586 

powers  in  respect  to,  granted  by 
statute  to  home  rule  cities  in  Okla- 
homa, 586-588 

power  over,  prohibited  to  cities  by 
Michigan  enabling  act,  610 

power  over,  granted  to  Texas  cities  by 
enabling  act,  654 

doubts  in  respect  to  city's  power  over, 
under  general  grants  of  home  rule 
powers,  671 
EJUSDEM   GENERIS,   RULE   OF, 

not  applied  to  enumeration  of  specific 
powers  of  home  rule  in  Colorado 
constitution,  532,  536,  553,  554 

not  to  be  applied  in  construction  of 
powers  granted  to  cities  by  Michigan 
enabling  act,  611 

not  to  be  applied  in  construction  of 
powers  granted   to  cities  by  Texas 
enabling  act,  653 
ELECTION, 

of  boards  and  commissions  to  draft 
home  rule  charters,  114-117 

of  boards  of  freeholders  in  Missouri, 
118-122 

of  boards  of  freeholders  in  California, 
202,  226 

of  boards  of  freeholders  in  California, 
power  of  city  to  regulate,  259-267, 
419 

of  boards  of  freeholders  in  Washing- 
ton, 396,  413-422 


INDEX 


705 


ELECTION  —  Continued 

charter  and  amendments  in  Minne- 
sota may  be  submitted  at  special  or 
general,  462,  463 

of  charter  conventions  in  Colorado, 
501,  503,  552 

of  county  officers  in  consolidated  city 
and  county  of  Denver,  509-516 

for  submission  of  charter,  regulated  by 
state  law  in  Oklahoma,  536,  564 

of  boards  of  freeholders  in  Oklahoma, 
558,  559,  562-564 

of  boards  of  freeholders  in  Arizona,  589 

of  charter  commissions  in  Michigan, 
not  prohibited  by  grant  of  home  rule 
powers  to  electors,  613,  614 

of  charter  commissions  in  Michigan, 
city  may  not  provide  non-partisan 
nominations  for,  618 

of  charter  commissions  in  Ohio,  622, 
624,  637 

of  charter  conventions  in  Nebraska, 
646-648 

of  charter  commissions  in  Texas,  652 

of  bodies  to  draft  charters,  general 
discussion  of  necessity  of  supple- 
menting constitutional  provisions 
for,  by  statutes  or  ordinances,  659- 
663 
ELECTIONS,  MUNICIPAL, 

statutes  in  respect  to,  supersede 
charter  provisions  in  Missouri,  141- 
146 

extent  of  charter  control  over,  in  prac- 
tice in  Missouri,  145 

power  of  home  rule  cities  over,  in 
Missouri  in  absence  of  conflicting 
statute,  182-186 

originally  subject  to  control  of  general 
laws  in  California,  233,  235 

of  boards  of  freeholders  in  California, 
regulation  of,  259-267 

charter  provisions  supersede  conflict- 
ing statutes  in  respect  to,  in  Cali- 
fornia, 267,  268 

extent  of  charter  control  over,  in  prac- 
tice in  California,  268,  269 

control  over,  conferred  on  California 
cities  by  constitutional  amendments 
of  1896  and  1911,  371,  392,  393 

on  charter  amendments  in  Washing- 
ton, regulation  of  majority  required 
at,  411,  412 


power  of  home  rule  cities  over,  in 
Washington  in  absence  of  conflict- 
ing statute,  425-429 

extent  of  charter  control  over,  in  prac- 
tice in  Washington,  427,  428 

conflict  in  respect  to,  between  statutes 
and  charter  provisions  in  Colorado 
516,  517,  543-547 

power  over,  conferred  on  Colorado 
cities  by  constitutional  amendment 
in  1912,  523,  524,  547,  553-555,  557 

power  of  Colorado  cities  over,  in 
absence  of  conflict  with  statute, 
541-543 

extent  of  charter  control  over,  in  prac- 
tice in  Colorado,  543,  555 

for  exercise  of  initiative  and  referen- 
dum powers  in  Oklahoma  cities, 
559,  560 

conflict  in  respect  to,  between  statutes 
and  charter  provisions  in  Oklahoma, 
583-585 

power  of  Oregon  cities  over,  602,  603 

required  by  Michigan  enabling  act  to 
be  regulated  by  home  rule  charter, 
610 

Michigan  enabling  act  imposed  limi- 
tation on  number  of  special,  611 

Ohio  constitution  provides  for  regula- 
tion by  statute  of  certain,  624,  636- 
638 

conflict  in  respect  to,  between 
statutes  and  charters  in  Ohio,  635- 
642 

general  discussion  of  regulation  of,  in 
relation  to  problem  of  self-executing 
grant  of  home  rule  powers,  659-663 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
EMINENT    DOMAIN,    POWER   OF, 

power  of  home  rule  city  in  Missouri 
to  regulate  exercise  of,  168,  174,  566 

constitutional  amendment  for  exercise 
of,  in  condemnation  of  excess 
property  defeated  in  California  in 
1914,  281,  282 

exercise  of,  beyond  city  limits  in  Cali- 
fornia, 336 

exercise  of,  in  street  improvements  in 
California,  341,  342 

not  implied  in  grant  of  charter-making 
power  in  Washington,  429-431 


706 


INDEX 


EMINENT  DOMAIN,  POWER  OF  — 

Continued 

power  to  regulate  exercise  of,  not  con- 
ferred on  Washington  public  service 
commission  by  law,  442 

may  not  be  delegated  to  public  utility 
corporations  by  home  rule  cities  in 
Washington,  442 

implied  in  grant  of  charter-making 
power  in  Minnesota,  471-474 

in  acquisition  of  public  utilities  granted 
by  Colorado  constitution,  499,  593 

implied  in  grant  of  charter-making 
power  in  Colorado,  536,  537 

in  relation  to  definition  of  public 
utility  in  Oklahoma,  567-574 

home  rule  cities  of  Oklahoma  au- 
thorized by  enabling  act  to  exercise, 
within  or  without  city,  in  acquisition 
of  property  for  various  enumerated 
purposes,  571 

Ohio  cities  may  exercise  within  or 
without  city,  for  acquisition  of  pub- 
lic utilities,  621,  622 

in  exercise  of,  Ohio  cities  may  con- 
demn property  in  excess  of  needs, 
623 

doubts  in   respect  to,   under  general 

grant  of  home  rule  powers,  671 
ENABLING   ACT, 

in  Missouri,  146,  153,  155,  187-189 

in  California,  262-267 

in  Washington,  400 

could  not  confer  power  to  create  police 
court  in  Washington,  401,  402 

relation  of,  to  exercise  of  police  powers 
in  Washington,  404-^07 

in  Washington  grants  power  to  regu- 
late procedure  for  making  charter 
amendments,  411 

in  Washington  authorizes  initiation 
of  home  rule  procedure  by  petition, 
413,  420,  422 

in  Washington  grants  some  power  over 
municipal  elections,  425 

in  Washington  did  not  grant  power  of 
eminent  domain,  429-431 

in  Washington  authorized  some  control 
over  assessments  and  taxes,  433-435 

in  Washington,  extent  of  power  over 
public  utilities  conferred  by,  436- 
445 

in    Washington    controls    home    rule 


cities  in  respect  to  their  form  of 
government,  448-455 

enactment  of,  expressly  authorized  by 
Minnesota  constitution,  457,  459,465 

supplements  constitutional  procedure 
for  home  rule  in  Minnesota,  460, 
463,  464 

brief  character  of,  in  Minnesota,  465- 
467 

did  not  grant  power  of  eminent  domain 
in  Minnesota,  471 

in  Minnesota  authorizes  home  rule 
cities  to  adopt  commission  form  of 
government,  476-479 

imposes  municipal  debt  limit  in  Min- 
nesota, 486,  487 

in  Oklahoma  supplements  constitu- 
tional grant  of  powers  of  municipal 
ownership  of  utilities,  571 

in  Oklahoma  clarified  constitution  in 
respect  to  supremacy  of  charters 
over  previously  enacted  city  laws, 
574,  575 

in  Oklahoma  conferred  powers  in  re- 
spect to  education,  586-588 

in  Arizona,  589,  590 

not  provided  in  Oregon,  595 

probably  could  be  enacted  in  Oregon, 
599,  600 

determines  scope  of  city's  powers  and 
home  rule  procedure  in  Michigan, 
609-612,  619 

in  Michigan,  in  relation  to  power  of 
cities  to  amend  existing  legislative 
charters,  615,  616 

judicial  construction  of,  in  Michigan, 
618-619 

in  Nebraska,  of  little  importance,  648 

necessity  of,  in  Texas,  651 

in  Texas  determines  procedure  for  exer- 
cise of  charter-making  power,  651 , 652 

in  Texas  determines  scope  of  charter- 
making  power,  653,  655 

necessity  of,  in  most  home  rule  states, 

659,  670 

EQUAL  PROTECTION  OF  THE 
LAWS, 

as  applied  to  relations  between  city 
and  state,  27 

compared  with  requirement  of  general 
legislation  for  cities,  97,  98 

in  relation  to  city's  exercise  of  police 
power  in  Colorado,  549-551 


INDEX 


707 


EVARTS   COMMISSION, 

report  of,  8-10 
EXCESS   CONDEMNATION, 

constitutional     amendment    for,     de- 
feated in  California  in  1914,  281,  282 
power  of,  conferred  on  Ohio  cities  by 
constitution,  623,  625,  626 

FASSETT   COMMITTEE, 

report  of,  10 
FEDERAL   IDEA, 

as  applied  to  relations  between  cities 
and  states,  109-113 

difference  in,  as  applied  to  relations 
between  cities  and  states,  177,  178 

as  embodied  in  national  constitution, 
contrasted  with  grant  of  home  rule 
powers  to  cities  in  respect  to  control 
over  procedure  for  exercise  of  self- 
governing  powers,  656-658 
FINANCIAL  POWERS, 

of  cities,  constitutional  provisions  re- 
lating to,  48-55,  70 

of  home  rule  cities  in  Missouri,  127- 
133,  173-176 

of  home  rule  cities  in  California,  211, 
212,  239,  248,  277-282,  282-285,  336, 
340,  370 

of  home  rule  cities  in  Washington,  420, 
429-436 

of  home  rule  cities  in  Minnesota,  471- 
473,  485-487 

of  home  rule  cities  in  Colorado,  535- 
537,  553 

of  home  rule  cities  in  Oklahoma,  580, 
581 

of  home  rule  cities  in  Michigan  regu- 
lated by  enabling  act,  610,  611 

of  cities  in  Ohio,  623,  624,  641,  643 

See  also  Accounts,  Bonds,  Debt  limit, 
Eminent  domain,  Excess  condemna- 
tion,    Legislative     power,     Licenses, 
Referendum,  Taxation 
FRANCHISES, 

limitations  upon  legislative  interfer- 
ence with,  60-62,  150 

conflict  in  respect  to,  between  stat- 
utes and  charters  in  California,  308- 
313 

of  telephone  companies  in  California, 
city  may  require,  309-311 

granted  by  cities  under  state  laws  in 
California,  311,  312 


of  water  and  lighting  companies, 
California  cities  could  not  require, 
347,  348,  353 

of  utility  companies  other  than  those 
furnishing  water  and  light,  Cali- 
fornia cities  could  require,  349-351 

power  of  home  rule  cities  to  grant, 
conferred  by  law  in  Washington, 
438^42 

for  exclusive  use  of  streets,  Washing- 
ton cities  may  not  grant,  439,  451, 
452 

power  of  home  rule  cities  to  grant,  did 
not  include  in  Washington  right  to 
fix  rates  by  contract,  439-441 

power  of  home  rule  cities  to  grant, 
must  be  exercised  as  prescribed  by 
law  in  Washington,  448-451 

for  grant  of,  constitution  requires  ap- 
proval of  taxpaying  electors  in 
Colorado,  502 

in  relation  to  definition  of  public 
utility  in  Oklahoma,  569,  571,  572 

power  of  home  rule  cities  in  Ohio  to 
grant,  in  manner  contrary  to  statute, 
644,  645 

See    also    Contracts,     Public    utilities. 

Referendum 
FREEDOM   OF   CONTRACT, 

not  secured  to  city  by  due  process  of 
law,  26,  406,  538-541 

not  decided  in  Washington  whether 
grant  of  charter-making  power  in- 
cludes guarantee  of,  406 

not  included  in  Colorado  in  grant  of 
charter-making  power,  538-541 

See  also  Contracts 
FREEHOLDERS, 

boards  of,  to  draft  charters,  114-117 

election  of,  in  Missouri,  118-122 

election  of,  in  California,  202,  226,  419 

qualifications  of,  in  California,  220 

election  of,  in  Washington,  396,  413- 
419 

appointment  of,  in  Minnesota,  457, 
460-462 

term  of,  in  Minnesota,  457,  460,  461 

function  of,  in  matter  of  charter 
amendments  in  Minnesota,  460,  461 

power  of,  to  employ  assistance  in 
Minnesota,  461,  462 

cannot  delegate  their  powers  in  Min- 
nesota, 461,  462 


708 


INDEX 


FREEHOLDERS  —  Continued 
election  of,  in  Colorado,  501,  503 
election  of,  in  Oklahoma,  558,  559,  562, 

563 
have  no  power  in  Oklahoma  to  order 

election  for  submission  of  charter, 

563 

election  of,  in  Arizona,  589 
See  also  Commissions,  Conventions 

GARBAGE,    DISPOSAL   OF, 

power  to  acquire  property  for,  by  emi- 
nent domain  or  otherwise,  within 
or  without  city,  granted  to  home 
rule  cities  of  Oklahoma  by  enabling 
act,  571 

GENERAL     LAWS     FOR     CITIES, 
REQUIREMENT   OF, 

as  applied  to  home  rule  cities  in  Mis- 
souri, 123-125,  143,  144,  147,  148, 
155,  160,  171 

meaning  of,  as  used  originally  in  Cali- 
fornia constitution,  231-251 

meaning  of,  in  California  after  constitu- 
tional amendment  of  1896,  252-321 

as  applied  in  California  to  cities  under 
the  general  code,  252,  253 

as  applied  in  California  to  cities  under 
special  legislative  charters,  254,  255, 
274,  275,  280,  283,  284 

as  applied  in  California  to  cities  under 
home  rule  charters,  311,  312 

as  used  in  California  constitutional 
amendment  of  1914,  319-321 

as  applied  in  Washington  to  cities 
under  home  rule  charters,  398—400, 
433,  437,  455,  456 

as  applied  in  Minnesota  to  cities  under 
home  rule  charters,  457,  458,  480- 
497 

as  applied  in  Colorado  to  cities  under 
home  rule  charters,  554-556 

as  applied  in  Oklahoma  to  cities  under 
home  rule  charters,  574-580 

not  found  in  Oregon  constitution,  both 
general  and  special  laws  for  cities 
being  prohibited,  591-593,  601 

in  relation  to  Michigan  constitutional 
provisions  in  respect  to  special 
legislation,  604-607 

as  applied  to  Michigan  cities,  607-609 

practice  of  Michigan  legislature  in 
respect  to,  608,  609 


in  relation  to  grant  of  home  rule  powers 

in  Ohio,  630-635 
general   discussion  of,   in  relation   to 

power    of    legislature    to    prescribe 

home  rule  procedure,  660 
general  discussion  of,  as  applied  alike 

to  home  rule  and  other  cities,  666 
general  discussion  of  vagueness  of,  as 

applied  to  home  rule  cities,  676,  677 
denned  as  laws  of  general  application 

to  cities,   general  discussion  of,,  as 

applied  to  home  rule  cities,  677—682 
defined   as   laws   of   general   or   state 

concern,    general    discussion   of,    as 

applied  to  home  rule  cities,  682-684 
See  also  Conflict  between  statutes  and 

home    rule    charters,    Enabling    act, 

Legislative  power,  Special  legislation 

for  cities 

GENERAL   WELFARE   CLAUSES, 
of  home  rule  charters  in  Missouri,  180, 

181 
GEORGIA, 

municipal  debt  limit  in,  54 
limitation  on  municipal  aid  to  private 

corporations  in,  57 
limitation    on    legislative    grants    of 

street  franchises  in,  62 
publicity    on    special    legislation    for 

cities  in,  95 
GOVERNOR, 

veto  of,  on  charters  and  amendments 

in  Oklahoma,   Michigan,    and   Ari- 
zona, 116 
veto  of,  on  charters  and  amendments 

is  absolute  in  Oklahoma,  558-560 
probable  effectiveness  of  veto  of,  560- 

562 
veto  of,  on  charters  and  amendments 

in  Michigan  is  suspensive,  612 
power  of,  to  remove  mayors  in  Ohio, 

644 

veto  power  of,  on  charters  and  amend- 
ments, discussion  of,  667 

HEALTH, 

conflict  in  respect  to,  between  statutes 

and  charters  in  California,  286-294 
matters  pertaining  to,  a  "municipal 

affair"  in  California,  290,  291,  343 
practice  of  local  boards  of,  to  avoid 

conflicts  with  statutes  in  California, 

294 


INDEX 


709 


HEALTH  —  Continued 

cities  in  California  may  not  purchase 
property  for  hospital  under  direct 
constitutional  grant  of  power  to 
regulate,  330-332 

cities  in  Washington  may  establish 
department  of,  under  statutory 
grant  of  power,  453 

department  of,  in  relation  to  commis- 
sion form  of  government  in  Wash- 
ington, 453-455 

power  of  Minnesota  home  rule  city  to 
enforce  vaccination  in  interest  of, 
470,  471 

power  to  create  department  of, 
granted  to  Texas  cities  by  enabling 
act,  654 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 

See  also  Hospitals,  Police  power 
HIGHWAYS, 

See  Streets 
HOME   RULE, 

See  Charter-making  power 
HOME   RULE   ACT, 

See  Enabling  act 
HOSPITALS, 

California    cities    may    not    acquire 
property  for,  under  direct  constitu- 
tional  grant  of  power  to   regulate 
matters  pertaining  to  health,  3*30- 
,-      332 

power  to  acquire  property  for,  by 
eminent  domain  or  otherwise,  within 
or  without  city,  granted  to  home 
rule  cities  in  Oklahoma  by  enabling 
act,  571 

See  also  Health 

IDAHO, 

municipal  debt  limit  in,  54 

limitation    on    special    legislation    for 

cities  in,  95 
ILLINOIS, 

protection  of  municipal  taxation  in, 
49,  50 

municipal  debt  limit  in,  54 

limitation  on  legislative  grants  of 
street  franchises  in,  61 

history  of  prohibition  on  special  legis- 
lation for  cities  in,  92-94,  95 

special    legislation    for    Chicago    per- 


mitted in,  subject   to   referendum, 
105,  106 
INDIANA, 

inherent  right  of  local  self-government 
in,  13,  15 

municipal  debt  limit  in,  54 

prohibition  against  municipal  aid  to 
private  corporations  in,  56 

limitation  on  legislative  interference 
with  streets  in,  59 

history  of  prohibition  on  special  legis- 
lation for  cities  in,  74-81,  95 
INHERENT     RIGHT     OF     LOCAL 
SELF-GOVERNMENT, 

doctrine  of,  12-15 
INITIATIVE, 

in  election  of  charter-making  bodies, 
114,  116 

of  charter  amendments,  115,  117 

of  home  rule  procedure  in  Missouri, 
118-122 

of  home  rule  procedure  in  California, 
202,  203,  224,  225-228 

of  ordinances  by  petitioners  in  Cali- 
fornia, 318,  319,  367 

of  home  rule  procedure  in  Washington, 
396,  397,  413-418,  420-424 

charter  provisions  for,  applied  to 
charter  amendments  in  Spokane, 
422-424 

charter  provisions  for,  applied  to  grant 
of  franchises  in  Washington  until 
abolished  by  statute,  438,  449 

of  home  rule  procedure  in  Minnesota, 
458,  460,  461 

of  home  rule  procedure  in  Colorado, 
501-503,  552 

of  ordinances  by  petitioners,  provision 
for,  required  by  Colorado  constitu- 
tion, 503 

grant  of  powers  of,  to  voters  is  not 
prohibited  by  federal  guarantee  of 
republican  form  of  government,  525 

of  charter  amendments,  power  of  home 
rule  cities  of  Colorado  to  regulate 
procedure  for,  547-549 

of  home  rule  procedure  in  Oklahoma, 
558-560,  562,  564,  565 

of  ordinances  by  petitioners,  right  of, 
granted  and  regulated  by  constitu- 
tion in  Oklahoma,  559,  560,  564 

and  referendum,  regulations  for,  in 
supplement  of  Oklahoma  constitu- 


710 


INDEX 


INITIATIVE  —  Continued 

tion  are  provided  by  statute  in  ab- 
sence of  charter  provisions,  564,  565 

of  charters  and  charter  amendments, 
only  by  initiative  and  referendum 
procedure  in  Oregon,  595—600 

and  referendum,  Oregon  constitutional 
provisions  for,  in  relation  to  exercise 
of  home  rule  powers,  595-600,  658 

of  charters  and  amendments,  power  of 
Oregon  cities  to  regulate  procedure 
for,  596-598 

and  referendum,  power  to  provide  for, 
granted  to  Michigan  cities  by  en- 
abling act,  610 

of  home  rule  procedure  in  Michigan, 
612,  614,  618,  619 

of  home  rule  procedure  in  Ohio,  622, 
623,  637 

and  referendum,  powers  of,  reserved 
to  Ohio  cities  to  be  exercised  as 
prescribed  by  law,  641,  642 

of  home  rule  procedure  in  Nebraska, 
646-648 

of  home  rule  procedure  in  Texas,  652 

of  home  rule  procedure  after  adoption 
of  a  home  rule  charter,  general  dis- 
cussion of  permitting  such  charter 
to  regulate  matter  of,  663,  664 

See  also  Amendments,  Charter-making 

power,  Referendum 
INTERFERENCE, 

See  Legislative  interference  with  cities 
IOWA, 

inherent  right  of  local  self-government 
in,  13,  15 

municipal  debt  limit  in,  53 

limitation  on  legislative  interference 
with  streets  in,  59 

limitation  on  special  laws  for  private 
corporations  in,  66 

history  of  prohibition  on  special  legis- 
lation for  cities  in,  81-85,  95 

nominal  home  rule  in,  82-85 

JURISDICTION       OF       STATE 
COURTS, 

power  of  city  to  control,  as  to  munic- 
ipal matters,  in  absence  of  con- 
flicting statute  in  Missouri,  193-195 

in  respect  to  removal  of  city  officers 
in  California,  313-318 

power  of  California  city  to  give  police 


courts  jurisdiction  concurrent  with, 
375-377,  385 

California  city  has  no  power  to 
diminish,  378-382,  385 

power  of  California  cities  in  respect  to, 
386 

power  of  city  to  control,  as  to  munic- 
ipal matters,  in  absence  of  conflict- 
ing statute  in  Washington,  426,  427, 
442 

power  of  city  to  control,  as  to  munici- 
pal matters,  in  absence  of  conflict- 
ing statute  in  Minnesota,  473,  474 

power  denied  to  Colorado  cities  to 
control,  in  respect  to  municipal 
election  contests,  541-543 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
JUVENILE   COURTS, 

in  Missouri,  196 

in  California,  390,  391 

KANSAS, 

protection  of  municipal  taxation  in,  53 
history  of  prohibition  on  special  legis- 
lation for  cities  in,  85,  95 
KENTUCKY, 

protest  against  legislative  interference 

with  cities  in,  10,  11 
inherent  right  of  local  self-government 
*in,  13,  15 
right  of  local  selection  of  city  officers 

in,  43 

municipal  debt  limit  in,  54 
prohibition  on  special  legislation  for 
cities  in,  95 

LEGISLATIVE     INTERFERENCE 

WITH   CITIES, 
extent  of,  5-12 
protests  against,  6-11 
remedy  for,  12,  17 
in  financial  matters,  26,  48-55 
in  selection  of  local  officers,  29-45 
in    appointment    of    special    commis- 
sioners, 45-48 

in  the  matter  of  streets,  59,  60 
in  the  matter  of  street  franchises,  60-62 
prohibitions  against,  by  special  acts, 

68-106 

extent  of,  under  New  York  constitu- 
tion of  1894,  103-105 


INDEX 


711 


LEGISLATIVE  POWER, 

over  cities  in  absence  of  constitutional 
limitations,  15-17 

over  home  rule  cities  in  Missouri,  118- 
171 

over  home  rule  cities  in  California, 
229-321 

over  home  rule  cities  in  Washington, 
398-400,  403,  404,  407-410,  429- 
435,  438,  440,  442^45,  450,  451,  456 

to  create  police  courts  cannot  be  dele- 
gated in  Washington,  401,  402 

to  supplement  home  rule  procedure  in 
Washington,  413-121 

over  home  rule  cities  in  Minnesota, 
457-459,  480-497 

over  home  rule  cities  in  Colorado,  506- 
516,  522,  535-547,  551,  552,  554-556 

over  home  rule  cities  in  Oklahoma, 
562-565,  574-581,  583-586,  588 

over  cities  in  Oregon,  591-593,  595, 598, 
601-604 

over  cities  in  Michigan,  591,  604-609 

over  cities  in  Ohio,  630-645 

over  home  rule  cities  in  Nebraska, 
648,  649 

over  home  rule  cities  in  Texas,  651,  652 

to  prescribe  home  rule  procedure, 
general  discussion  of,  660,  661 

extent  of,  over  home  rule  cities  and 
over  other  cities,  should  be  clearly 
distinguished  in  constitution,  665, 
666 

to  veto  home  rule  charters  and  amend- 
ments, general  discussion  of,  667 

over  home  rule  cities,  reservation  of, 
in  respect  to  enumerated  subjects, 
672,  673,  683,  684 

over  home  rule  cities,  general  discus- 
sion of  terms  in  which  it  should  be 
expressed,  673-684 

to  define  the  scope  of  home  rule 
powers,  general  discussion  of,  678- 
682 

LEGISLATIVE     VETO     IN     CALI- 
FORNIA, 

on  charters  and  amendments,  114,  203, 
227 

form  of,  205,  206,  224 

results  of,  218-220 

LIABILITY       OF      HOME       RULE 
CITIES, 

See  Claims 


LIBRARIES,    MUNICIPAL, 

relation  of  statute  and  charter  provi- 
sion in  respect  to,  in  California,  240, 

241 
LICENSES, 

conflicts  in  respect  to,  between  statutes 

and  charters  in  Missouri,  129-132, 

156,  157 
conflicts  in  respect  to,  between  statutes 

and  charters  in  California,  277-280 
for  sale  of  liquor,  power  of  cities  in 

California  to  regulate,  324,  327,  330 
for  sale  of  liquor,  power  to  regulate, 

granted    to    cities    by    statute    in 

Washington,  435,  448,  449 
public   utility   franchises   granted   by 

Washington  cities  were  not  contracts 

but  were  in  the  nature  of,  440,  441 
for  sale  of  liquor,  Colorado  grant  of 

home  rule  powers  did  not  prevent 

state  from  requiring,  535,  536 
for   sale   of  liquor,   regulation  of,   in 

Oregon,  592 
Michigan   enabling   act   grants   cities 

power  to  regulate,  610 
See  also  Taxation 
LIQUOR  LICENSES, 

See  Licenses 
LOCAL   OPTION, 

See  Licenses 
LOCAL   PURPOSE, 

See  Corporate  purpose,  Public  purpose 
LOCAL      SELECTION      OF      CITY 

OFFICERS, 
right  of,  guaranteed  by  constitutions, 

29-45 

LOCAL   SELF-GOVERNMENT, 
doctrine  of   inherent  right  of,  12-15 
right  of,  expressly  granted  by  Colorado 

amendment  of  1912,  553 
probable  effect  of  grant  of,  by  Colorado 

amendment,  555 
in  effect  compulsory  in  Oregon,  591- 

593 
in  practice  compulsory  in  Michigan, 

591 
right  of,   expressly   granted   by  Ohio 

constitution,  621 
in  Ohio  can  be  exercised  only  through 

charter-making  power,  625-629 
applied    to    settle    conflicts    between 

statutes  and  charters  in  Ohio,  634- 

645 


712 


"INDEX 


LOCAL  SELF-GOVERNMENT— C<m- 

tinued 
certain  powers  of,  withheld  from  cities 

by  various  provisions  of  Ohio  con- 
stitution, 641,  642 
general  discussion  of  use  of  term,  in 

home  rule  provisions,  668-670 
See  also  Charter-making  power,  Powers 

of  home  rule  cities 
LOUISIANA, 

right  of  local  selection  of  city  officers 

in,  29-31 

municipal  debt  limit  in,  54 
limitation   on   legislative   interference 

with  streets  in,  60 
limitations    on    legislative    grants    of 

street  franchises  in,  62 
prohibition   on   special    acts    creating 

private  corporations  in,  66 
prohibition  on  special  legislation  for 

small  cities  in,  95 
publicity    on    special    legislation    for 

cities  in,  95 

MACHINERY  FOR  EXERCISE  OF 
HOME   RULE   POWERS, 

general  discussion  of,  656-667 
MAINE, 

municipal  debt  limit  in,  54 
MANUFACTURING   PLANTS,   MU- 
NICIPAL, 

home    rule    cities    of    Oklahoma    au- 
thorized by  enabling  act  to  construct 
and  operate,  571 
MARYLAND, 

one  municipal  corporation  in,  during 
colonial  period,  3 

recognition  of  Annapolis  in  first  state 
constitution  of,  3,  4 

limitation     upon     municipal     aid    to 

private  corporations  in,  56,  57 
MICHIGAN, 

protests  against  legislative  interference 
with  cities  in,  11 

inherent  right  of  local  self-government 
in,  13,  15,  43,  44 

right  of  local  selection  of  city  officers 
in,  43-45 

protection  of  municipal  taxation  in,  53 

limitation   on   legislative   interference 
with  streets  in,  59 

early  limitation  on  grant  of  corporate 
charters  in,  66 


limitation  on  special  laws  for  private 
corporations  in,  68 

limitation  on  special  legislation  for 
cities  in,  95,  106 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  612- 
620 

home  rule  cities  in,  117,  612,  613 

charter-making  power  in,  is  compul- 
sory in  practice,  591,  609 

text  of  home  rule  provision  of  consti- 
tution of,  604,  610,  611,  616 

scope  of  home  rule  powers  in,  deter- 
mined by  enabling  act,  609-612,  619 

enabling  act  in,  609-612 
MINISTERIAL   POWER, 

power  of  council  to  cause  election  of 
freeholders  in  Washington  declared 
to  be,  413-418 

power  of  council  to  grant  franchises 
held  in  Minnesota  not  to  be, 
451 

power   of   council   to   submit   charter 
amendments  in   Colorado   declared 
to  be,  548 
MINNESOTA, 

protest  against  legislative  interference 
with  cities  in,  11 

limitation  on  municipal  aid  to  private 
corporations  in,  57 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in, 
113 

procedure  for  exercise  of  charter- 
making  power  in,  114,  115,  457,  458, 
460-465 

home  rule  cities  in,  115,  458,  459 

text  of  home  rule  provisions  of  consti- 
tution of,  457,  458 

enabling  act  in,  459,  460,  463-467,  471, 
476-479,  486,  487 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
465-480 

conflict  between  statutes  and  charter 

provisions  in,  480-497 
MISSISSIPPI, 

limitation  on  municipal  aid  to  private 
corporations  in,  57 

prohibition  on  special  legislation  for 
cities  in,  95 


INDEX 


713 


MISSOURI, 

municipal  debt  limit  in,  54 

prohibition  against  municipal  aid  to 
private  corporations  in,  56 

limitation  on  legislative  interference 
with  streets  in,  59,  60 

limitation  on  legislative  grants  of 
street  franchises  in,  60,  61 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  114,  115,  118-122 

home  rule  cities  in,  115,  120 

text  of  home  rule  provisions  of  con- 
stitution of,  118-122 

conflict  between  statutes  and  charter 
provisions  in,  118—171 

scope  of  home  rule  powers  in,  in  ab- 
sence of  conflict  with  state  laws,  172- 
199 
MONOPOLIES,    MUNICIPAL, 

See  Public  utilities 
MONTANA, 

prohibition  against  special  city  com- 
missions in,  46,  47 

municipal  debt  limit  in,  54 
MOTION-PICTURE   THEATER, 

power  of  Ohio  city  to  establish,  629, 
630 

not  a  public  utility  in  Ohio,  629,  630 

See  also   Auditorium,  Convention  hall, 

Opera  house 
MUNICIPAL   AFFAIRS, 

meaning  of  term,  as  used  in  California 
constitutional  amendment  of  1896, 
252-321 

retrospective  operation  of  California 
constitutional  amendment  in  respect 
to,  263,  272-275,  284 

'difficulty  of  defining  meaning  of,  279, 
280 

as   used   in    California    constitutional 

amendment  of  1914,  319-321 
MUNICIPAL   CORPORATIONS, 

in  the  colonies,  3 

under  first  state  constitutions,  3,  4,  29 

origin  of  constitutional  protection  for, 
29 

excepted  from  early  prohibitions 
against  special  legislation  for  cor- 
porations, 66-68,  591 

not  excepted  in  Ohio  and  Indiana  from 


prohibitions  against  special  legisla- 
tion for  corporations,  68-81 

See  also  Cities,  Towns,  Villages 
MUNICIPAL   COURTS, 

power  to  create,  in  addition  to  police 
courts,  granted  to  home  rule  cities 
of  California  by  constitutional 
amendment  of  1914,  394 

power  to  create,  in  addition  to  police 
courts,  granted  to  home  rule  cities 
of  Colorado  by  constitutional  amend- 
ment of  1912,  553,  554,  557 

See  also  Juvenile  courts,  Police  courts 
MUNICIPAL   OWNERSHIP, 

See  Public  utilities 
MUNICIPAL   PURPOSE, 

See  Corporate  purpose,  Public  purpose 

NEBRASKA, 

inherent  right  of  local  self-government 
in,  13 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 

prohibition  on  special  legislation  for 
cities  in,  87,  88,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  646-648 

no  home  rule  cities  in,  117,  649 

text  of  home  rule  provisions  of  consti- 
tution of,  646,  647 

enabling  act  in,  of  little  importance, 

648 
NEVADA, 

protection  of  municipal  taxation  in,  53 

special  legislation  for  cities  not  pro- 
hibited in,  87 
NEW   HAMPSHIRE, 

prohibitions     on     municipal     aid     to 

private  corporations  in,  58 
NEW   JERSEY, 

municipal  corporations  in,  during 
colonial  period,  3 

prohibition  against  special  city  com- 
missions in,  46,  47 

prohibition  against  municipal  aid  to 
private  corporations  in,  58 

limitation  on  legislative  interference 
with  streets  in,  60 

limitation  on  legislative  grants  of  street 
franchises  in,  62 

prohibition  on  special  legislation  for 
cities  in,  95 


714 


INDEX 


NEW   MEXICO, 

prohibition  on  special  legislation  for 

cities  in,  95 
NEW   YORK, 

municipal     corporations     in,     during 

colonial  period,  3 
recognition  of  municipal  corporations 

in  first  state  constitution  of,  3 
early  legislative  practice  toward  mu- 
nicipal corporations  in,  5 
protests  against  legislative  interference 

with  cities  in,  6-10 
appointment  of  mayors  in,  31 
constitutional  right  of  local  selection 

of  city  officers  in,  32-42,  45 
protection  of  municipal   taxation  in, 

50-53 

municipal  debt  limit  in,  54 
prohibition  on  municipal  aid  to  private 

corporations  in,  58 
limitation   on   legislative   interference 

with  streets  in,  60 
limitation  on  legislative  grants  of  street 

franchises  in,  61,  62 
early  limitation  on  grant  of  corporate 

charters  in,  64-66 
limitation  on  special  laws  for  private 

corporations  in,  66-68 
prohibition  urged  in  1846  on  special 

laws  for  cities  in,  67,  68 
history   of   local    suspensive   veto   on 

special  laws  for  cities  in,  95,    101- 

105 
NOMINATION     OF     CANDIDATES 

FOR   MUNICIPAL   OFFICES, 
charter  provisions  in  respect  to,  are 

subject    to    control   of    statutes   in 

Oklahoma,  584,  585 
charter  provisions  in  respect  to,  are 

not  subject  to  control  of  statutes  in 

Ohio,  638-642 

See  also  Elections,  Primary  elections 
NORTH   CAROLINA, 

one  municipal  corporation  in,  during 

colonial  period,  3 

protection  of  municipal  taxation  in,  53 
municipal  debt  limit  in,  54 
limitation  on  municipal  aid  to  private 

corporations  in,  57 
NORTH   DAKOTA, 

municipal  debt  limit  in,  54 
prohibition  on  special  legislation  for 

cities  in,  95 


NUISANCE, 

See  Smoke  nuisance 

OBLIGATION    OF    CONTRACTS, 

See  Contracts 
OFFICERS, 

local  selection  of  city,  29—45 

extension  of  terms  of  local,  by  legis- 
lature, 41,  42 

distinction  between  local  and  state 
functions  of  city,  44 

state  appointment  of  city,  not  pre- 
vented by  prohibition  of  special  city 
commissions  in  Colorado,  47,  48 

distinction  between  county  and  city, 
under  consolidated  government  of 
San  Francisco,  248,  250,  372 

members  of  state  appointed  health 
board  for  San  Francisco  held  to  be 
state,  286 

power  of  home  rule  cities  in  California 
to  impose  perpetual  disqualification 
upon,  as  punishment,  313,  314,  365, 
366 

in  charge  of  education  in  California 
may  be  state  officers,  344,  345 

power  of  home  rule  cities  in  California 
to  regulate  qualifications  of,  364 

control  over  county,  conferred  on  con- 
solidated cities  and  counties  in  Cali- 
fornia by  constitutional  amendment 
of  1896,  371,  372,  386-391,  393 

recall  of  municipal,  in  Washington, 
428,  429 

control  over  terms,  powers,  duties, 
qualifications,  and  tenure  of  munici- 
pal, conferred  on  home  rule  cities  by 
Colorado  constitutional  amendment 
of  1912,  553 

conflict  in  respect  to  reduction  of  com- 
pensation of,  between  city  charters 
and  constitution  in  Oklahoma,  579 

home  rule  cities  of  Michigan  required 
by  enabling  act  to  provide  for  cer- 
tain, 610 

See    also    Civil    service    requirements, 

County  officers,  Removal  of  officers 
OHIO, 

protection  of  municipal  taxation  in,  53 

prohibition  against  municipal  aid  to 
private  corporations  in,  56 

history  of  prohibition  on  special  legis- 
lation for  cities  in,  68-74,  95 


INDEX 


715 


OHIO  —  Continued 

charter-making  power  granted  in, 
113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  622- 
624 

home  rule  cities  in,  117,  624,  625 

text  of  home  rule  provisions  of  consti- 
tution df,  621-624 

specific  powers  granted  to  cities  in, 
621-624 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
625-630 

conflict  between  statutes  and  charters 

in,  630-645 
OKLAHOMA, 

municipal  debt  limit  in,  54 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in, 
113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  558-560, 
562-565 

home  rule  cities  in,  117,  560 

text  of  home  rule  provisions  of  consti- 
tution of,  558-560,  567 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
564-574,  581-583,  586-588 

conflict  between  statutes  and  char- 
ter provisions  in,  574-581,  583- 
586,  588 

enabling  act  in,  571,  574,  575,  586-588 
OPERA  HOUSE, 

power  of  home  rule  city  of  California 
to  contract  with  private  association 
for  construction  and  management 
of,  363-364 

See  also  Auditorium,  Convention  hall, 

Motion-picture  theater 
ORDINANCES, 

method  of  enacting,  a  "municipal 
affair"  in  California,  254 

prosecutions  for  violating,  a  "munici- 
pal affair"  in  California,  257-259 

city  may  provide  for  enactment  of,  by 
initiative  and  referendum  in  Cali- 
fornia, 318,  319,  367 

of  home  rule  cities  in  Minnesota,  can- 
not have  exterritorial  operation,  475, 
476 


power  to  impose  fines  and  penalties 
for  violation  of,  conferred  on  Colo- 
rado cities  by  amendment  of  1912, 
553 

right  to  enact  by  initiative  and  refer- 
endum, granted  and  regulated  by 
Oklahoma  constitution,  559,  560, 
564 

Oregon  cities  may  regulate  procedure 
for  exercise  of  charter-making 
powers  by,  596-598 

See  also   Health,   Police  power,   Strict 

construction  of  home  rule  charters 
OREGON, 

protection  of  municipal  taxation  in,  53 

prohibition  against  municipal  aid  to 
private  corporations  in,  56 

limitation  on  legislative  interference 
with  streets  in,  59 

prohibition  on  special  or  general  legis- 
lation for  cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  114,  115,  594-600 

home  rule  cities  in,  115,  593,  594 

charter-making  power  is  in  effect  com- 
pulsory in,  591-593 

text  of  home  rule  provision  of  consti- 
tution of,  592,  601 

scope  of  home  rule  powers  in,  in 
absence  of  conflict  with  state  laws, 
600-604 

conflict  between  statutes  and  charters 
in,  603,  604 

PARKS, 

conflicts  in  respect  to,  between  statutes 

and  charters  in  Missouri,  156-163 
power   over,    conferred    on    Colorado 

cities  by  amendment  of  1912,  553 
power  of  home  rule  city  in  Oklahoma 

to  alienate  property  in,  566 
power    to    acquire    property    for,    by 

eminent  domain  or  otherwise,  within 

or  without  city,  granted  to  home  rule 

cities  of  Oklahoma  by  enabling  act, 

571 
PEDDLERS, 

conflict  in   Missouri  between  statute 

and  charter  in  respect  to   definition 

of,  130-132 
power  of  home  rule  city  in  Minnesota 

to  define,  467-469 


716 


INDEX 


PENNSYLVANIA, 

municipal  corporations  in,  during 
colonial  period,  3 

recognition  of  municipal  corporations 
in  first  state  constitution  of,  3,  4 

prohibition  against  special  city  com- 
missions in,  45,  46 

municipal  debt  limit  in,  54 

prohibition  against  municipal  aid  to 
private  corporations  in,  56 

prohibition  on  special  legislation  for 

cities  in,  95 
PETITION, 

See  Initiative,  Referendum 
POLICE, 

of  home  rule  cities,  subject  to  state 
control  in  Missouri,  133-138,  142 

of  home  rule  cities,  subject  to  charter 
control  in  California,  255,  260 

control  over,  conferred  upon  home 
rule  cities  in  California  by  constitu- 
tional amendment  of  1896,  371,  392 

home  rule  cities  in  Minnesota  have 
power  to  establish  departments  of, 
467 

home  rule  cities  in  Colorado  em- 
powered by  constitution  to  provide 
for,  500 

power  to  create  and  regulate  depart- 
ment of,  granted  to  Texas  cities  by 
enabling  act,  654 

doubt  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
POLICE   COURTS, 

power  of  city  to  create,  in  Missouri, 
195-197 

city  lacked  power  to  create,  in  Cali- 
fornia, 206,  207,  214-217,  241-245, 
257,  258 

city  granted  power  to  create,  by  Cali- 
fornia constitutional  amendment  of 
1896,  370,  371 

California  amendment  in  respect  to, 
was  not  retrospective,  372 

scope  of  California  city's  power  to 
regulate  jurisdiction  of,  373-386 

scope  of  California  city's  power  to 
fix  compensation  of  judges  of,  374, 
375 

additional  power  in  respect  to,  granted 
by  California  constitutional  amend- 
ment of  1911,  392 


city  lacks  power  and  may  not  be 
granted  power  to  create,  in  Wash- 
ington, 400-403 

Minnesota  city  has  no  power  to  create, 
490-492 

power  to  create,  conferred  on  Colorado 
cities  by  constitutional  amendment 
of  1912,  553,  557 

power  to  create,  not  granted  to  Texas 
cities  by  enabling  act,  654 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
POLICE   POWER, 

of  home  rule  cities  in  Missouri,  sub- 
ject to  state  police  laws,  138-141 

discussion  of  grant  of,  by  home  rule 
charters  in  general  terms,  177-179, 
323 

strict  construction  of  grant  of,  by 
home  rule  charter  in  Missouri,  179- 
181 

unreasonable  exercise  of,  under  home 
rule  charters  in  Missouri,  181,  182 

of  home  rule  cities  in  California,  sub- 
ject to  state  police  laws,  256,  257, 
292,  293,  322 

in  relation  to  control  over  education 
in  California,  306-308 

of  cities  in  California,  referable  di- 
rectly to  the  constitution,  323-333, 
370 

unreasonable  exercise  of,  under  home 
rule  charters  in  California,  325. 

may  not  be  exercised  in  California  in 
violation  of  charter  provisions,  325  . 

of  home  rule  cities  in  Washington,  sub- 
ject to  state  police  laws,  403,  404 

of  cities  in  Washington,  referable 
directly  to  the  constitution,  403-407, 
442,  443 

reasonable  exercise  of,  under  home  rule 
charters  in  Washington,  courts  will 
determine,  405 

limitation  of  hours  of  labor  on  public 
work  is  not  properly  referable  to, 
406 

in  relation  to  control  over  public  utili- 
ties in  Washington,  438,  439,  442- 
445 

of  home  rule  cities  in  Minnesota,  in 
absence  of  conflict  with  statute,  467- 
471 


INDEX 


717 


POLICE  POWER  —  Continued 

of  home  rule  cities  in  Minnesota  can- 
not be  exercised  exterritorially,  475, 

476 
of    home   rule    cities    in    Minnesota, 

subject  to   state  police  laws,    492, 

493 
of  home  rule   cities  in   Colorado,   in 

relation  fo  due  process  of  law  and 

equal  protection  of  the  laws,  549- 

551 
of    home    rule     cities    in     Colorado, 

subject  to   state   police   laws,   551, 

552 
granted  to  Michigan  cities  by  enabling 

act,  subject  to  state  police  laws,  610, 

611 

granted  to  Ohio  cities  directly  by  con- 
stitution,   subject    to    state    police 

laws,  617,  621,  633,  634 
granted  to  Texas  cities  by  enabling 

act,   subject   to   state   police    laws, 

654 

See  also  Due  process  of  law,  Equal  pro- 
tection of  the  laws,  Health,  Hospitals, 

Smoke  nuisance 
POLL   TAX, 

under  home   rule   charter  of   Kansas 

City,  183-186 
POWERS  OF  HOME  RULE  CITIES 

IN    ABSENCE    OF    CONFLICT 

WITH   STATUTES, 
scope  of,  in  Missouri,  172-199 
scope  of,  in  California,  322-395 
scope  of,  in  Washington,  400-402,  404- 

407,   425-431,    433-440,   442,    445- 

449,  451-455 
scope  of,  in  Minnesota,  459,  465-480, 

490-492 
scope  of,  in  Colorado,  489,  500,  502, 

504,    505,    517-521,    524-526,    531- 

537,  541-543,  549-551,  553-557 
scope  of,  in  Oklahoma,  564-574,  581- 

583,  586-588 

scope  of,  in  Oregon,  600-604 
scope  of,  determined  by  enabling  act 

in  Michigan,  609-612,  619 
scope  of,  in  Ohio,  625-630 
scope  of,  determined  by  enabling  act 

in  Texas,  653-655 
to  regulate  subsequent  amendment  and 

revision  of  their  charters,  discussion 

of,  663,  664 


granted  in  general  terms,  discussion 
of,  669-673 

origin  of  doubts  concerning,  670 

difficult  to  make  complete  constitu- 
tional enumeration  of,  672 

enumeration  of,  as  to  moot  matters, 
advisable,  672,  683,  684 

enumeration  of,  in  California  and 
Colorado,  following  objectionable 
judicial  decisions,  672 

made  "subject  to"  constitution,  dis- 
cussion of,  674,  675 

referable  to  statutory  definition  as  to 

scope,  discussion  of,  678-682 
PREFERENTIAL  VOTING, 

may  be  provided  for  by  home  rule 
charter  in  Oregon,  602,  603 

See  also  Elections 
PRIMARY   ELECTIONS, 

charter  provisions  in  respect  to,  sub- 
ject to  control  of  statutes  in  Okla- 
homa, 584,  585 

state  laws  regulating,  apply  to  elections 
of  charter  commissions  in  Michigan, 
618,  619 

state  laws  regulating,  do  not  control 
charter  provisions  in  Ohio,  638-642 

See  also  Elections,  Nomination  of  can- 
didates for  municipal  offices 
PROCEDURE   FOR  EXERCISE   OF 
HOME   RULE   POWERS, 

See  Charter-making  power 
PROPERTY,    MUNICIPAL, 

protection  of,  under  due  process  of  law, 
21-27 

power  of  home  rule  city  in  Oklahoma 
to  alienate,  566 

power  of  home  rule  city  in  Oklahoma 
to  acquire,  by  eminent  domain  or 
otherwise,  within  or  without  city, 
571 

PUBLICATION  OF  CHARTERS 
AND  OF  CHARTER  AMEND- 
MENTS, 

in  Missouri,  118-122 

in  California,  202,  203,  224,  225-228 

in  Washington,  396,  397,  411 

in  Minnesota,  458,  464 

in  Colorado,  501-503 

in  Oklahoma,  558-560 

in  Arizona,  589 

in  Oregon,  regulated  by  ordinance,  597 

in  Nebraska,  646-648 


718 


INDEX 


PUBLIC   PURPOSE, 

taxation  for,  282,  362,  363,  533,  534, 
569,  570,  630 

condemnation  of  property  for,  282 

See  also  Corporate  purpose 
PUBLIC    SERVICE    COMMISSION, 

created  by  charter  of  Los  Angeles,  350, 
351 

supremacy  of  powers  of  state,  in 
Washington,  over  powers  of  home 
rule  cities,  439-445 

See  also  Commissions,  Corporation  com- 
mission, Railroad  commission,  Public 
utilities 

PUBLIC     SERVICE     CORPORA- 
TIONS, 

See  Public  utilities 
PUBLIC   USE, 

held   to    be    synonymous  with  public 

utility  in  Oklahoma,  567-570 
PUBLIC   UTILITIES, 

prohibitions  against  municipal  aid  to 
corporations  operating,  55-59 

limitations  upon  legislative  interfer- 
ence with  franchises  for,  60-62,  150, 
345 

conflicts  in  respect  to  control  over, 
between  statutes  and  charters  in 
Missouri,  149-153 

power  of  city  to  regulate,  in  Missouri 
in  absence  of  conflict  with  statute, 
186-190 

taxation  of,  in  California,  280 

conflicts  in  respect  to  control  over, 
between  statutes  and  charters  in 
California,  308-313 

power  of  city  in  California  to  acquire 
and  operate,  outside  city  limits,  335, 
336,  360 

power  of  California  cities  in  respect 
to,  in  absence  of  conflicting  statutes, 
345-355 

constitutional  provisions  in  respect  to, 
in  California,  345,  351,  355,  360,  370 

extent  of  regulation  of,  by  home  rule 
cities  in  California,  346,  348,  350 

California  cities  lacked  power  to  re- 
quire franchises  for  operation  of  cer- 
tain, 347,  348,  353 

power  of  California  cities  to  fix  rates 
of  certain,  346 

power  of  California  cities  to  regulate 
use  of  streets  by,  346 


power  of  California  cities  over  service, 
extensions,  accounts,  and  securities 
of  certain,  348 

California  cities  enjoyed  power  to  re- 
quire franchises  for  operation  of 
certain,  349,  350 

California  constitutional  amendment 
of  1911  in  respect  to,  351-354 

municipal  ownership  of,  in  California, 
355-364 

California  constitutional  amendment 
of  1911  in  respect  to  municipal 
ownership  of,  360 

extension  of,  by  special  assessments  in 
Washington,  434 

power  of  municipal  ownership  of,  in 
Washington,  436,  445 

Washington  cities  have  no  power  to 
regulate  rates  of,  except  under 
statutory  grant,  436-445 

power  of  Washington  cities  to  grant 
franchises  for,  438-442 

power  of  Washington  cities  to  regulate 
service  of,  438,  439,  443^45 

relation  of  police  power  to  control  of, 
in  Washington,  438,  439,  442-445, 
449^52 

franchises  granted  for,  by  Washington 
cities  are  not  contracts,  440,  441 

power  of  municipal  ownership  of, 
granted  by  Colorado  constitution, 
499,  503,  557 

exterritorial  powers  in  respect  to  ac- 
quisition of,  granted  by  Colorado 
constitution,  499,  503 

power  of  municipal  ownership  of, 
grafted  by  Oklahoma  constitution, 
567 

convention  hall  held  in  Oklahoma  to 
be  included  among,  567-572 

constitutional  grant  of  power  of  munic- 
ipal ownership  of,  supplemented  by 
enabling  act  in  Oklahoma,  571 

power  to  acquire  property  for,  by 
eminent  domain  or  otherwise,  within 
or  without  city,  conferred  on  Okla- 
homa home  rule  cities  by  enabling 
act,  571 

extent  of  power  of  home  rule  cities  to 
regulate  privately  owned,  not  deter- 
mined in  Oklahoma,  572-574 

powers  of  corporation  commission  of 
Oklahoma  in  respect  to,  not  ex- 


INDEX 


719 


PUBLIC  UTILITIES  —  Continued 

tended  to  utilities  where  service  is 
within  cities,  572-574 

municipal  debt  limit  in  Oklahoma 
may  be  exceeded  for  acquisition 
of,  581 

constitutional  grant  of  power  of  munic- 
ipal ownership  of,  supplemented  by 
enabling  act  in  Arizona,  590 

power  of  municipal  ownership  of, 
granted  by  Michigan  constitution 
and  enabling  act,  610,  611 

power  of  municipal  ownership  of,  con- 
ferred on  Ohio  cities  by  constitution, 

621,  622,  625,  626,  641 

power  of  cities  to  contract  for  service 
of,  conferred  by  Ohio  constitution, 

622,  644,  645 

power  of  cities  to  furnish  service  of, 

beyond  limits  of  city  conferred  by 

Ohio  constitution,  622 
motion-picture    theater    in   Ohio   not 

included  among,  629,  630 
conflict     over     control     of,     between 

statute  and  charter  in  Ohio,   644, 

645 
power  of  municipal  ownership  of,  and 

power  to  regulate  privately  owned, 

granted  to  Texas  cities  by  enabling 

act,  654 
doubts  in  respect  to  city's  power  to 

regulate  and  to  own,  under  general 

grant  of  home  rule  powers,  671 
See  also  Franchises 

RAILROAD   COMMISSION, 

of  California,  power  of,  over  local  utili- 
ties under  amendment  of  1911,  354, 
355 

expanded  into  public  service  commis- 
sion in  Washington,  439 
See  also  Corporation  commission,  Pub- 
lic service  commission 
RAILWAY  AID   LEGISLATION, 

prohibitions  against,  55—59 
RATES,    PUBLIC   UTILITY, 

See  Public  utilities 
RATIFICATION, 
See  Referendum 

RECALL    OF     MUNICIPAL    OFFI- 
CERS, 

power  of  Washington  cities  to  provide 
for,  428,  429 


regulated   by   statute   in   Washington 
since  constitutional  amendment  of 
1912,  429 
REFERENDUM, 

constitutional  requirements  of,  on 
municipal  aid  to  private  corpora- 
tions, 57 

constitutional  requirements  of,  on 
franchise  grants,  61,  62 

to  city  authorities  on  special  legisla- 
tion in  New  York,  101-105 

to  voters  on  special  legislation  for 
Chicago,  105,  106 

on  home  rule  charters  and  amend- 
ments, 114-117 

on  charters  and  amendments  in  Mis- 
souri, 118-122 

on  annexation  of  territory  in  Missouri, 
147 

on  charters  and  amendments  in  Cali- 
fornia, 202,  203,  220,  222,  224,  225- 
228 

on  general  laws  for  cities  in  California, 
231-235,  319 

on  municipal  debts  in  California,  282, 
285 

on  ordinances  in  California,  318,  319, 
367 

on  question  of  local  or  state  control 
over  public  utilities  in  California, 
354,  355 

on  charters  and  amendments  in  Wash- 
ington, 396,  397,  411,  412,  422,  424 

on  general  laws  for  cities  in  Washing- 
ton, 396,  398,  399,  433 

on  franchise  grants  in  Washington 
until  abolished  by  statute,  438,  449- 
452 

on  charters  and  amendments  in  Min- 
nesota, 457,  458,  462,  463 

to  taxpayers,  on  issue  of  bonds  for 
acquisition  of  utilities  in  Colorado, 
499 

on  charters  and  amendments  in  Colo- 
rado, 501-503,  547-549 

on  ordinances,  provision  for,  required 
by  Colorado  constitution,  503 

institution  of  initiative  and,  is  not  pro- 
hibited by  federal  guarantee  of  re- 
publican form  of  government,  525 

to  taxpaying  voters  of  Denver  on 
issuance  of  bonds  for  erection  of 
auditorium,  531-535 


720 


INDEX 


REFERENDUM  —  Continued 

on  consolidation  of  park  or  water  dis- 
tricts in  home  rule  cities  in  Colorado, 
553 

on  charters  and  amendments  in  Okla- 
homa, 558-560 

institution  of  initiative  and,  in  Okla- 
homa cities,  established  and  regu- 
lated by  constitution,  559,  560 

regulations  for  initiative  and,  in 
supplement  of  Oklahoma  constitu- 
tion, are  provided  by  statute  in  ab- 
sence of  charter  provision,  564,  565 

on  municipal  bond  issues  in  Oklahoma, 
581 

on  debts  in  excess  of  debt  limit  for 
acquisition  of  public  utilities  in 
Oklahoma,  581 

on  charters  and  charter  amendments 
in  Arizona,  589 

relation  in  Oregon  of  constitutional 
provisions  for  initiative  and,  to 
exercise  of  home  rule  powers,  595- 
600,  658 

on  special  or  local  laws  in  Michigan, 
.  doubts  in  respect  to,  604-607 

power  to  provide  for  initiative  and, 
granted  to  cities  by  Michigan  en- 
abling act,  610 

on  municipal  bond  issues  in  Michigan, 
611 

on  charters  and  charter  amendments 
in  Michigan,  612 

on  municipal  ownership  of  utilities 
may  be  demanded  in  Ohio,  622,  637 

on  proposal  to  elect  charter  commis- 
sion in  Ohio,  622,  637 

on  charters  and  amendments  in  Ohio, 
623,  637 

on  "additional"  general  laws  in  Ohio, 
632,  633,  637 

initiative  and,  reserved  to  Ohio  cities 
to  be  exercised  as  prescribed  by  law, 
641,  642 

on  charters  and  amendments  in  Ne- 
braska, 646,  647 

on  proposal  for  election  of  charter 
convention  in  Nebraska,  646,  647 

on  charters  and  amendments  in  Texas, 
652 

to  taxpaying  voters  on  municipal  bond 
issues,  required  by  Texas  enabling 
act,  652,  653 


REMOVAL  OF  CITY  OFFICERS, 
conflicts     in     respect     to,      between 

statutes  and  charters  in  Missouri, 

163-165 
conflicts  in  respect  to,  between  statutes 

and  charters  in  California,  313-318 
power  to  regulate,  conferred  on  cities 

by    constitutional    amendment    in 

California,  316,  367,  370 
in  charge  of  educational  matters,  doubt 

concerning,  in  California,  344,  345, 

392 
power  of  home  rule  cities  in  California 

to  regulate,  in  absence  of  conflicting 

statute,  365-367 

by  recall  in  Washington,  428,  429 
by  governor  in  Ohio,  644 
REPUBLICAN  FORM  OF  GOVERN- 
MENT, 
federal    guarantee    of,    considered    in 

relation    to    Colorado    home    rule 

provisions,  506—526 
REVENUE,   MUNICIPAL, 

See  Financial  powers,  Licenses,  Taxa- 
tion 

"SCHEME," 

for  separation  of  city  and  county  gov- 
ernments in  St.  Louis,  118,  120,  121 
SCHOOLS, 

See  Education 
SELF-EXECUTING, 

home  rule  provisions  in  California 
declared  to  be,  259-267 

home  rule  provisions  in  Washington  ' 
declared  not  to  be,  413,  414 

home  rule  provisions  in  Minnesota 
were  not,  465 

Colorado  home  rule  amendment  of 
1912  declared  itself  to  be,  554 

home  rule  provisions  in  Oklahoma 
declared  to  be,  562-563 

home  rule  provisions  in  Oklahoma  not 
in  fact,  563-565 

constitutional  grant  of  municipal 
ownership  of  utilities  in  Oklahoma 
assumed  to  be,  570,  571 

home  rule  provisions  in  Oregon  in 
effect  held  to  be,  595-598,  661 

home  rule  provisions  in  Michigan  are*' 
not,  604,  609 

home  rule  provisions  in  Nebraska  re- 
garded as,  648 


INDEX 


721 


SELF-EXECUTING  —  Continued 

home  rule  provisions  in  Texas  are  not, 
651 

in  no  state  have  home  rule  provisions 
been  completely,  659,  660 

discussion  of  the  plan  of  granting 
to  municipal  authorities  power 
to  supplement  home  rule  proce- 
dure as  a  method  by  which 
home  rule  grant  may  be  made, 
661-663 

discussion    of    conditions    demanding 
that  home  rule  provisions  should  be, 
663,  666,  667 
SELF-GOVERNMENT, 

See  Local  self-government 
SEPARATION   OF   TERRITORY, 

from  home  rule  city  in  California,  247, 
333,  334 

cannot  be  effected  by  charter  provi- 
sion in  Washington,  408 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 
SEWAGE,   DISPOSAL   OF, 

power  to  acquire  property  for,  by 
eminent  domain  or  otherwise,  within 
or  without  city,  granted  to  home 
rule  cities  of  Oklahoma  by  enabling 
act,  571 
SINGLE  TAX, 

proposal  for,  defeated  in  California  in 
1914,  281 

provision  for,  in  charter  of  Everett, 
Washington,  435,  436 

provision   for,   in   charter  of   Pueblo, 

Colorado,  537 

SMOKE    NUISANCE,     POWER    OF 
HOME  RULE  CITY  TO  ABATE, 

in  Missouri,  181,  182 

in  Minnesota,  469 
SOUTH   CAROLINA, 

protection  of  municipal  taxation  in, 
50,  53 

municipal  debt  limit  in,  54 

prohibition  on  special  legislation  for 

cities  in,  95 
SOUTH   DAKOTA, 

municipal  debt  limit  in,  54 

prohibition  on  special  legislation  for 

cities  in,  95 
SPECIAL   ASSESSMENTS, 

See  Taxation 


SPECIAL   CITY   COMMISSIONS, 

See  Commissions 
SPECIAL      LEGISLATION      FOR 

CITIES, 

in  selection  of  local  officers,  29-45 
in  appointment  of  city  commissions, 

45-48 

prohibitions  against,  47,  64-106 
in  the  matter  of  streets,  59,  60 
in  the  matter  of  street  franchises,  60- 

62 
urged  in  New  York  in  behalf  of  rights 

of  property  owners,  67,  68 
prohibition  against,  in  Ohio,  68-74 
practice    of    Ohio    legislature    in    the 

matter  of,  71-74 

prohibition  against,  in  Indiana,  74-81 
practice  of  Indiana  legislature  in  the 

matter  of,  76-79 

prohibition  against,  in  Iowa,  81-85 
home  rule  thought  to  have  been  estab- 
lished in  Iowa  by  prohibition  against, 

82-85 
prohibition  against,  legislative  practice 

under,  in  Kansas,  85-87 
provisions  in  respect  to,  in  Nevada, 

Nebraska,  Arkansas,  Tennessee,  and 

Virginia,  87-91 
prohibitions  against,  were  not  aimed 

to  protect  cities  prior  to  1870,  92 
prohibition  against,  legislative  practice 

under,  in  Illinois,  92-94 
present  prohibitions  against,  94,  95 
nature  of  protection  afforded  by  pro- 
hibitions against,  96-101 
practical  results  of  prohibitions  against, 

98-101 
under  suspensive  local  veto  in  New 

York,  101-105,  666 
upon  a  referendum  in  Illinois  (Chicago 

only),  105,  106 
as  applied  to  cities  under  home  rule 

charters  in  Missouri,  123-125,  143, 

144,  147,  148,  155,  160,  171 
in  Oregon  down  to  1906,  591 
in    Michigan,    doubts   in    respect    to, 

since  grant  of  home  rule  powers  to 

cities,  604-607 
practice  of  Michigan  legislature  in  the 

matter  of,  605,  607 
in  Texas,  doubts  in  respect  to,  since 

grant  of  home  rule  powers  to  cities, 

650,  651 


722 


INDEX 


SPECIAL      LEGISLATION       FOR 
CITIES  —  Continued 

general  discussion  of,  in  relation  to 
power  of  legislature  to  prescribe 
home  rule  procedure,  660 

discussion  of,  as  applied  to  home  rule 
cities,  677 

See  also  General  laws  for  cities 
SPECIAL        LEGISLATION        FOR 
PRIVATE   CORPORATIONS, 

limitations  on,  64-69,  75,  76,  87-89, 

93,  591 
STATE   OFFICERS, 

See  Officers 
STREET   RAILWAYS, 

See  Public  utilities 
STREETS, 

prohibitions  on  legislative  interference 
with,  59-62 

conflicts  between  statutes  and  charter 
provisions  in  Missouri  in  respect  to 
improvement  of,  153—156,  175 

power  of  home  rule  cities  over,  in 
Missouri,  190-193 

charter  provisions  in  respect  to, 
originally  subject  to  control  by 
general  laws  in  California,  237-239, 
246,  247 

control  over,  is  a  "municipal  affair" 
in  California,  271-273 

control  over  public  utilities  in  relation 
to,  in  California,  309-311  ' 

power  of  home  rule  cities  over,  in  Cali- 
fornia, 337-339,  341,  342 

power  of  California  cities  to  regulate 
use  of,  by  public  utilities,  346,  349 

statutory  grant  of  power  to  Washing- 
ton cities  to  regulate  use  of,  by 
public  utilities,  438,  439,  442 

may  not  be  closed  for  public  utility 
uses  in  Washington,  439,  451,  452 

conflict  in'  respect  to  improvement 
of,  between  charter  and  previously 
enacted  law  in  Minnesota,  485,  486 

home  rule  city  in  Minnesota  may  free 
itself  from  liability  for  proper  main- 
tenance of,  488-490 

power  of  home  rule  cities  of  Ohio  to 
control,  645 

doubts  in  respect  to  city's  power  over, 
under  general  grant  of  home  rule 
powers,  671 

See  also  Claims 


STRICT  CONSTRUCTION  OF  HOME 
RULE   CHARTERS, 

in  Missouri,  179-182 

in  California  abrogated  as  to  police 
powers,  323-333 

in  California  as  to  other  than  police 
powers,  337 

in  Minnesota  as  to  liability  of  cities, 
489,  490 

in  Colorado,  550 

SUBSTANTIVE  POWERS  OF  HOME 
RULE, 

as  contrasted  with  adjective  power  of 

charter-making,  624-629,  668,  669 
SUFFRAGE, 

exercise  of,  may  not  be  made  compul- 
sory by  home  rule  charter  require- 
ment in  Missouri,  183-186 

powers  of  home  rule  cities  to  regulate 
qualifications  for,  581-583 

TAXATION, 

power  of  legislature  to  compel,  for 
local  purposes,  26 

constitutional  clauses  relating  to  mu- 
nicipal, 48-55,  258,  340,  420 

conflicts  in  respect  to,  between  statutes 
and  charters  in  Missouri,  127-133 

scope  of  home  rule  city's  power  of,  in 
Missouri,  173, 174, 183-186, 191-193 

conflicts  in  respect  to,  between  stat- 
utes and  charters  in  California,  277- 
281 

separation  of  local  and  state  subjects 
of,  in  California,  280,  281 

California  amendment  in  respect  to, 
defeated  in  1914,  281 

for  a  public  purpose,  principle  of,  282, 
362,  363,  533,  534,  569,  570,  630 

power  of  home  rule  cities  in  California 
to  exercise  power  of,  340 

conflicts  in  respect  to,  between  stat- 
utes and  charters  in  Washington, 
432-435 

scope  of  home  rule  city's  power  of, 
under  statutory  grant  in  Washing- 
ton, 433-435 

city's  power  over,  in  Minnesota  in 
absence  of  conflicting  statute,  472, 
473 

conflict  in  respect  to,  in  Minnesota 
between  charter  and  previously  en- 
acted statute,  485,  486 


INDEX 


723 


TAXATION  —  Continued 

power  to  fix  rate  of,  conferred  by  con- 
stitution on  Denver,  502 

for  state  purposes  in  Colorado  pro- 
tected from  local  interference,  503, 
535,  536 

for  county  purposes,  power  over,  held 
not  to  be  conferred  on  Denver,  517- 
521 

constitutional  amendment  in  Colorado 
conferring  power  on  home  rule  cities 
to  control,  537,  553,  557 

subjects  of  municipal,  determined  by 
enabling  act  in  Michigan,  610 

for  special  benefits  limited  by  Ohio 
constitution,  623 

home  rule  city's  power  of,  may  be 
limited  by  law  in  Ohio,  624 

for  state  purposes,  protected  by  Ne- 
braska constitution  from  interfer- 
ence by  home  rule  charters,  647 

powers  of  home  rule  cities  in  respect 
to,  under  Texas  constitution,  649 

for  educational  purposes,  power  of, 
granted  to  Texas  cities  by  enabling 
act,  654 

city's  power  in  respect  to,  is  in  doubt 
under  general  grant  of  home  rule 
powers,  671 
TAX   CLAIMS, 

See  Claims 
TELEPHONE   COMPANIES, 

See  Public  utilities 
TENNESSEE, 

protection  of  municipal  taxation  in,  48, 
49 

limitation  on  municipal  aid  to  private 
corporations  in,  57 

special  legislation  for  cities  not  pro- 
hibited in,  89,  90 
TERRITORY,    MUNICIPAL, 

See     Annexation    of    territory,   Police 

power,  Separation  of  territory 
TEXAS, 

inherent  right  of  local  self-government 
in,  13 

municipal  debt  limit  in,  54 

prohibition  on  municipal  aid  to  private 
corporations  in,  58 

limitation  on  legislative  interference 
with  streets  in,  60 

limitation  on  legislative  grants  of 
street  franchises  in,  62 


prohibition  on  special  legislation  for 
small  cities  in,  95,  649 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  116,  117,  651,  652 

home  rule  cities  in,  117,  650 

text  of  home  rule  provision  of  consti- 
tution of,  649,  650 

enabling  act  in,  650-654 

scope  of  home  rule  powers  in,  deter- 
mined by  enabling  act,  653-655 
TOWNS,     HOME     RULE     POWERS 
GRANTED   TO, 

in  Oregon,  116,  592 

UTAH, 

prohibition  against  special  city  com- 
missions in,  46,  47 

municipal  debt  limit  in,  54 

prohibition  on  special  legislation  for 
cities  in,  95 

VACCINATION, 

power  of  home  rule  city  in  Minnesota 

to  require,  470,  471 
VETO, 

of  city  on  special  legislation  in  New 

York,  101-105,  666 
of  legislature  in  California  on  charters 

and  amendments,  114,  203,  224,  225 
of  governor  in  Oklahoma,  Michigan, 

and  Arizona  on  charters  and  amend- 
ments, 116 
of  governor  in  Oklahoma,  on  charters 

and  amendments,  is  absolute,  558- 

560 
of   governor   in    Oklahoma,    probable 

effectiveness  of,  560-562 
of  governor  in  Michigan,  on  charters 

and  amendments,  is  suspensive,  612 
of  legislature  or  governor,  on  charters 

and  amendments,  discussion  of,  667 
VILLAGES,  HOME  RULE  POWERS 

GRANTED   TO, 
in  Minnesota,  114,  457-459 
in  Michigan,  116,  604,  612 
in  Ohio,  622 
VIRGINIA, 

municipal     corporations     in,     during 

colonial  period,  3 
right  of  local  selection  of  city  officers 

in,  43 
municipal  debt  limit  in,  54 


724 


INDEX 


VIRGINIA  —  Continued 

special  legislation  for  cities  not  pro- 
hibited in,  90,  91,  95 
VOTING, 

See  Suffrage 

WASHINGTON, 

municipal  debt  limit  in,  54 

prohibition  on  special  legislation  for 
cities  in,  95 

charter-making  power  granted  in,  113 

procedure  for  exercise  of  charter- 
making  power  in,  114,  115,  396,  397 

home  rule  cities  in,  115,  397,  398 

text  of  home  rule  provision  of  consti- 
tution of,  396,  397,  429 

conflict  between  statutes  and  charter 
provisions  in,  398, 399, 403, 404, 432- 
434, 438,  440,  442-445,  450,  451,  456 

enabling  act  in,  400, 404,  405,  411, 413, 
420,  422,  425,  433,  436-445,  448-455 

scope    of    home    rule    powers    in,    in 
absence  of  conflict  with  state  laws, 
400^=02,  404-407,  411^31,  433^40, 
442,  445-449,  451-455 
WATERWORKS, 

See  Public  utilities 
WEIGHTS   AND   MEASURES, 

power  of  California  cities  to  regulate, 
under  constitutional  grant  of  police 
power,  331 


WEST   VIRGINIA, 

protection  of  municipal  taxation  in,  50 
municipal  debt  limit  in,  54 
limitation    on    legislative    grants    of 

street  franchises  in,  61 
prohibition  on  special  legislation  for 

small  cities  in,  95 
WISCONSIN, 

protests  against  legislative  interference 

with  cities  in,  11 
right  of  local  selection  of  city  officers 

in,  42 
protection  of  municipal  taxation  in, 

53 

municipal  debt  limit  in,  54 
prohibition  on  special  legislation  for 

cities  in,  95 
WOMAN'S   SUFFRAGE, 

power  of  home  rule  cities  to  provide 

for  or  against,  582,  583 
WYOMING, 

prohibition  against  special  city  com- 
missions in,  46,  47 
municipal  debt  limit  in,  54 
prohibition  on  special  legislation  for 

cities  in,  95 

ZONES, 

power  of  California  cities  to  establish, 
under  constitutional  grant  of  police 
power,  332 


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